1. DEFINITIONS AND INTERPRETATION

1.1 Definitions: In this Agreement, unless the context otherwise requires:

“Agreement” means this Agreement comprising Sections A, and B, the Schedule, any attachments and any Proposal provided pursuant to this Agreement which is accepted by the Customer.

“Business Day” means any day which is not a Saturday, Sunday or public holiday in Auckland, New Zealand. “Charges” means

  • the invoiced amounts for the Energy supplied by the Retailer including lines company and network charges, regulatory and government levies and other amounts invoiced by the Retailer,

  • the Fees payable by the Customer to Commercial Utilities for provision of the Services,

  • any early termination or break fee charges,
  • any interest, penalty or other amounts charged by the Retailer on late or unpaid amounts,
  • all other fees, costs, charges payable by the Customer to Commercial Utilities, the Retailer or any third party pursuant to this Agreement or an Energy Contract or otherwise in connection with provision of the Services.

“Commencement Date” means the commencement date of the Term which shall be the date this Agreement is signed, or if not signed, on the date that the Customer indicates by email, telephone or in person that they accept the terms and conditions of this Agreement and request Commercial Utilities to obtain a Proposal.

“Confidential Information” means all information in any form about or owned by a party that is not in the public domain (other than through a breach of confidentiality by any person), including this Agreement; the content and terms of any Proposal; the terms of supply under an Energy Contract; information about a party’s business, finances, operations, and any information relating to the Services.

“Customer”, “you” and “your” means the named Customer (whose details are included in the Schedule) and includes (where the context requires) its directors, trustees, partners, employees, contractors, agents, successors and assignees.

“Commercial Utilities”, “we”, “us” and “our” means Commercial Utilities Limited and includes (where appropriate) its directors, employees, contractors, agents, successors and assignees and related parties.

“Energy” means electricity, gas or other energy goods or services sold by a Retailer to the Customer at the Premises.

“Energy Contract” means a contract between the Customer and a Retailer for supply of Energy, entered and managed by Commercial Utilities on behalf of and under the authority of the Customer pursuant to this Agreement.

“Fees” means monthly Commercial Utilities Fee for providing the Services, specified in the Proposal.

“GST” means goods and services tax chargeable, or to which a person may be liable, under the Goods and Services Tax Act 1985, and any penalties, additional tax or interest payable in respect thereof.

“Insolvency Event” means if a party is wound up or becomes externally administered; has a liquidator or receiver appointed by any person; is adjudicated bankrupt, or cannot pay all its debts when due.

“Premises” means the premises, buildings, sites or locations to which the Energy is supplied.

“Proposal” means a proposal from Commercial Utilities to the Customer setting out the findings of Commercial Utilities assessment of the Customer’s Energy needs and the details including Charges of a new or improved Energy Contract.

“Retailer” means a supplier / reseller or potential supplier / reseller of Energy to the Customer.

“Schedule” means the Schedule of specifications as set out in Section C of this Agreement

“Services” means Energy supply advice, assessment and procurement services supplied to the Customer by Commercial Utilities as may be varied from time to time in accordance with this Agreement. The Services include Commercial Utilities acting on the Customers’ behalf to:

  1.   Request and collect Energy usage and pricing information from current Retailer,
  2. assess and analyse Customer’s Energy consumption and needs;
  3. negotiate with Retailers seeking competitive offers for energy supply;
  4. present a Proposal to the Customer;
  5. if Proposal is accepted, sign new Energy Contract/s with Retailer on Customer’s behalf;
  6. account management including invoicing the Customer, receiving Customer payment for monthly Charges and disbursement of payments collected from Customer to pay monthly Retailer invoices for Customer’s Energy Contract,
  7. receive and forward / process communications and notices to the Customer relating to Energy Contract, (viii) ongoing monitoring and reporting of Customer Energy consumption and invoicing,
  8. related support and services as Consumer Utilities elects to offer from time to time.

“Setup Fee” means the non-refundable fee payable by the Customer specified in the Proposal, payable upon the Customer accepting a Proposal.

“Term” means the term of this Agreement.

 

1.2 Interpretation: In this Agreement, unless the context otherwise requires:

singular will include plural and vice versa;

reference to a company or other entity includes reference to a person and vice versa;

reference to a statute or regulation will include all amendments and re-enactments thereof and any subordinate legislation and regulations made thereunder;

the term “including” means “including without limitation”;

any obligation not to do anything will be deemed to include an obligation not to suffer, permit or cause that thing to be done;

2. AUTHORISATION TO ACT ON CUSTOMER’S BEHALF

2.1 Commercial Utilities is Authorised to act on Customer’s Behalf: Upon the Customer signing this Agreement, Commercial Utilities is irrevocably authorised by the Customer to:

At its discretion, carry out credit checks on the Customer and its owners and officers and/or contact referees for the purpose of ascertaining the Customer’s credit worthiness before undertaking any Services;

Collect Energy use and billing history and other information related to Energy usage and cost for the Premises from the Customer and from the Customer’s current or recent past Retailers.

Assess and analyse your Energy supply and cost history and likely future needs.

Approach one or more Retailers that we consider appropriate in our discretion and provide them with the opportunity to offer a competitive Energy Contract.

Review and analyse all Retailer offers, enter into negotiations with one or more Retailers and select the offer that we believe best fits your needs.

Provide you with a Proposal setting out the terms of an Energy Contract offer that we believe best meets your needs including:

  1. Details of potential savings,

  2. Charges including our Fees for the Services,

  3. Whether the Energy costs are fixed or variable,

  4. The term of the Energy Contract,

  5. Any break fees for early termination if fixed term Energy Contract,

  6. The period that the Proposal is valid for acceptance by the Customer,
  7. other relevant details.

After receiving acceptance of the Proposal from you, sign an Energy Contract in your name on your behalf as your authorised representative with a Retailer.

Make direct debit withdrawals of funds from the Customer’s account in payment of the Charges on the due dates notified to the Customer.

Carry out all other Services as appropriate on your behalf during the Term of this Agreement.

 

2.2 The Proposal

The Customer agrees to provide or cause third parties to provide all information requested by Commercial Utilities in a timely manner as necessary to provide the Services.

If you wish to accept a Proposal, your authorised representative must sign and return the Proposal document by the due date and a fully binding Agreement to proceed with an Energy Contract and our Services shall be formed.

The Proposal will automatically lapse and no longer be available for acceptance after the due date unless we agree in writing to extend it.

 

2.3 Contact and Communications

After a new Energy Contract commences, the Retailer will be instructed to send directly and solely to Commercial Utilities all invoices, notices and communications from the Retailer, lines companies and any other person or organisation in relation to the Energy Contract, Charges and supply of Energy to the Premises.

We shall pay, process or resolve the invoices, notices and communications on your behalf as part of the Services; and we shall notify (or use our best endeavours to attempt to notify) your Contact person/s named in the Schedule in a timely manner of any information or notices that require your attention or action.

Contact person: Without limiting the other persons that bind you, the Key Customer Contact person and Backup Contact Person named in the Schedule will be the sole people we will contact or forward information and notices to; and you confirm that those people have full authority to represent and bind the Customer in all matters connected with this Agreement and provision of the Services. We are not responsible for any failure or delay in contacting you or providing information if the named Contact Persons

You must notify us immediately of any changes to contact people, emails and phone numbers. Unless you notify us, all communications from us to the contact addresses, emails and numbers set out in the Schedule shall be deemed delivered correctly.

Authority to take reasonable steps: If we become aware of any issue of Energy supply or disruption or other event that could impact on your property or people at the Premises, and we are unable to contact you to obtain instructions, we are authorised (but not obliged or required) to take reasonable steps including to make reasonable payments to protect the ongoing supply of Energy to the Premises or safety of your property and personnel at your expense and you will indemnify us in full for any costs incurred.

 

2.4 Named Customer

 The Customer warrants that they are the lawful owner or occupier of the Premises or authorised by the lawful owner or occupier to order the Services and enter into this Agreement.

Notwithstanding the accuracy of paragraph (a), the named Customer shall in all circumstances be solely liable:

  1. to Commercial Utilities Limited for payment of all Charges and complying with all Customer obligations under this Agreement; and

  2. for all Customer and owner/occupier obligations to the Retailer and any third parties under the Energy Contract.

Where the named Customer is not a sole trader; all directors, general or unlimited liability partners, trustees of the Customer are personally jointly and severally liable for the Customer’s obligations under this Agreement as if they were the named Customer, if the Customer fails to comply.

3. COMMERCIAL UTILITIES’ OBLIGATIONS:

3.1 Commercial Utilities shall exercise all due care and skill throughout the Term to negotiate a competitive price and terms of supply of Energy for the Customer; and deliver the Services to Customer in good faith in a timely, ethical manner.

 

3.2 Commercial Utilities shall:

Only use the Customer’s direct debit authority to receive payment of Charges due under this Agreement; and

Pay the Retailer invoices issued under the Energy Contract in full on the due dates (subject to the Customer funds having been received)

Not retain, disburse or use any Customer funds for purposes other than set out in this Agreement unless specifically authorised by the Customer

On demand, refund or repay any amounts received in error from the Customer or that are not, for any reason, due and payable to the Retailer

Use its best endeavours to require the Retailer to comply with its obligations to the Customer pursuant to the Energy Contract.

Treat the Customer’s Confidential Information and personal information about any identifiable person disclosed to by the Customer as confidential and private; and only use the information as strictly necessary for the purposes of this Agreement.

Reasonably assist the Customer by providing information and answering queries from time to time in relation to the Services

 

3.3 For clarity, if the Customer fails to make payment to Commercial Utilities of any amount due under this Agreement or the Energy Contract, Commercial Utilities shall have no obligation to the Customer or the Retailer to make payment of any amount due to the Retailer under the Energy Contract,

4. CUSTOMER OBLIGATIONS

4.1 The Customer will comply with all obligations under the Energy Contract and Retailer or third party notices and communications as notified to the Customer by Commercial Utilities.

4.2 Charges and Payments

The Customer will pay all Charges notified by us on the due dates without set off, deduction or withholding of any kind, throughout the Term, time being strictly of the essence.

Unless otherwise expressly stated, the Charges exclude GST and any payments shall be increased by the amount of any GST chargeable on any taxable supply under this Agreement.

We will submit a tax invoice to you for the Charges each month throughout the Term. All invoices shall be sent by email to the Billing email address specified in the Schedule.

If you dispute any portion of an invoice, you shall pay the applicable invoice in full and promptly notify us of the claim which shall, if necessary be resolved through the dispute process set out in this Agreement. No dispute or claim over Charges will be accepted as valid if made more than 30 days after the payment due date.

You shall pay us on demand interest at a rate equal to 5% above the current overdraft unsecured rate which we have with our principal bank, calculated by us on a daily basis on any amount not paid in full from the due date until payment and you must pay all costs and expenses (including costs on a solicitor/client basis and debt collectors' costs) we incur in collecting or attempting to collect payment of Charges. This sub-clause survives termination.

You acknowledge that you will have to pay any Retailer costs and charges incurred in relation to unpaid amounts under the Energy Contract where we have been unable to make payment due to your failure to pay the Charges.

You agree that we may withhold the further supply of all or any Services without liability to any person in the event that you are behind in payment of any Charges by more than 7 days; and you acknowledge that the Retailer will have rights to suspend or cancel supply of Energy for repeated or serious failure to pay the amounts due under the Energy Contract.

Where you are invoiced in advance or for a regular amount, or a Retailer discount is applied and the Charges actually incurred for the period are found to vary for any reason from the Charges invoiced, or the Customer payment is overdue negating the Retailer discount or incurring any fees or penalties from the Retailer, we may issue a ‘wash up’ invoice at any time following and you shall pay any resulting amount due on demand, or it will be added to the next monthly invoice.

4.3 Cost Increases

The Charges may be varied on a one off or ongoing basis at any time by notice in writing effective from the date we specify where circumstances or factors beyond our control affect the Charges, including, but not limited to any increase, levy or third party charges included in an invoice from the Retailer; the impact of legislative, regulatory, compliance or industry changes or unforeseen circumstances that affect our the Retailers or our costs of supplying the Services.

The Customer is solely responsible for any costing or pricing error or miscalculation or change where the Customer has not provided full and true disclosure of all relevant information necessary for us to make an accurate assessment of the Customer’s Energy requirements or effective analysis of offers or quotes from Retailers.

 

4.4 Break Fee: Where applicable, the Break Fee is payable on demand if this Agreement and/or an Energy Contract is terminated prior to the Energy Contract expiry date.

5. TERM AND TERMINATION

5.1 Term: This Agreement shall commence on the Commencement Date and shall continue until the earlier of:

Expiry of a Proposal acceptance date if the Proposal is not accepted by the Customer.

At the end of the term of the Energy Contract, if fixed term, and either the Customer or Commercial Utilities has given at least 30 days’ notice prior to expiry that it wishes to cancel this Agreement on the end date.

If notice is not given under paragraph (b), this Agreement shall renew for a further term of 12 months, and shall automatically renew for ongoing further periods of 12 months each unless a party gives at least 30 days’ notice prior to expiry of any 12 month period that it wishes to terminate the Agreement at the end of that 12 month period. The Charges may be reasonably increased by Commercial Utilities and/or Commercial Utilities may change Retailers on each renewal having regard to the best available prices and terms of Energy Contract available for the Premises at the time.

 

5.2 Early termination:

This Agreement may be terminated with immediate effect by either party (terminating party) by written notice to the other party (the defaulting party) if the defaulting party:

  1. suffers an Insolvency Event; or
  2. breaches, or fails to perform properly or promptly, any material obligation of that party under this Agreement and, where that breach is capable of remedy, fails to remedy the breach or perform the obligation within 10 Business Days after receiving written notice (inclusive of the date of receipt) from the terminating party of such breach or failure and requiring remedy. For clarity, your failure to pay any amount due to us under this Agreement in full, by the due date, shall constitute breach of a material obligation.

We may terminate this Agreement with immediate effect without notice or opportunity to remedy if you have failed to pay any amount in full on the due date on three or more occasions at any time during the Term, whether or not notices to remedy were given for prior breaches.

We may terminate this Agreement at any time on 60 days’ notice.

 

5.3 Consequences of Termination:

Upon expiry or termination of this Agreement for any reason:

  1. All Charges for Services to the date of termination shall be paid in full by the Customer. A ‘washup’ invoice may be issued at any time after date of termination if all billing information is not known at the date of termination.
  2. Any balance of Customer funds or refunds held by Commercial Utilities after payment in full of all amounts under this Agreement shall be returned to the Customer.
  3. Commercial Utilities shall advise the Retailer that it is no longer representing the Customer and ongoing management of the Customer’s account, payment for Energy supplied, invoicing and all other communications from the Retailer shall be made directly from the Retailer to the Customer.

6. OUR LIABILITY IS LIMITED

6.1 Consumer Guarantees and Fair Trading Acts: If the Services are acquired by you for business purposes and / or the Premises are business or commercial premises, and you are “in trade” within the meaning of the Fair Trading Act 1986 or the Consumer Guarantees Act 1993, you agree and you acknowledge that it is fair and reasonable that the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 (sections 9, 12A, and 13), do not apply to this Agreement or the Services.

 

6.2 Excluded Liability: To the fullest extent permitted by law, we shall not be liable for:

Any loss of profits or any other consequential, indirect or special loss, costs, damage or injury of any kind suffered or incurred by the Customer arising directly or indirectly from the performance or non-performance of our obligations under this Agreement, any breach of our obligations under or in connection with this Agreement or from any negligence, misrepresentation or other act or omission on our part;

Any loss or damages or cost of any kind suffered by the Customer for a Retailers failure to satisfy its obligations under an Energy Contract; or for the consequences of any failure or interruption of Energy supply to the Customer for any reason whatsoever; or for any claim or charge against the Customer by a Retailer or any other person or authority in connection with an Energy Contract or supply of Energy to the Customer;

The consequences of any of any communication, contact or notice in relation to the Energy Contract not being referred or forwarded to you if the same was not received by us, or where it was sent by us to the address or contact details provided by you and those details were incorrect or outdated, or for any other reason outside our control.

 

6.3 Maximum liability:  Notwithstanding anything else in this Agreement, our liability to the Customer or any other person where not excluded by under 6.2, in respect of any and all claims for costs, loss, damage or injury arising from breach of any of our obligations arising under or in connection with this Agreement, or from any termination or cancellation of this Agreement or from any negligence, misrepresentation or other act or omission on our part, shall not exceed:

The cost of replacing or repeating the Services, or crediting or refunding Charges paid for the Services where the Services were not supplied due to our act or omission;

An amount equivalent to our Fees paid by you in the six months prior to an event in respect of one event or a series of claims arising from the same event for direct costs, loss, damage or injury to you or your property or persons due to our act or omission.

We shall not be liable to you in respect of any matter whatsoever unless notice in writing of any claim is received by us within seven Business Days of the occurrence of the event or default or of the day on which you become aware of the event or default in respect of which your claim arises (time being of the essence).

 

6.4 Indemnity: You shall keep us indemnified at all times against any claim, loss, damage or injury we suffer or incur as a result of your breaches of this Agreement or the Energy Contract or your acts or omissions in connection with the Services including your failure to pay any amount due under the Energy Contract or this Agreement.

7. PERSONAL INFORMATION

7.1 For the purpose of facilitating the administration and efficient supply of the Services, and where applicable the purposes of the Privacy Act 1993, you permit us:

To collect all information we may require from any third parties and authorise those third parties to release that information;

To hold all information so obtained; and

To use that information, which will be accessible only by our duly authorised employees and Retailers, strictly for the purposes of this Agreement.

 

7.2 Information will be collected, held and used by us on the basis that:

It will be processed and held securely and in confidence with appropriate data protection systems; and You may request access to and correction of your information at any time; and

Following termination or expiry of this Agreement all personal information about the you shall be destroyed or deleted unless required by law to be retained.

8. DISPUTES

8.1 Dispute Resolution: If any claim, dispute or difference arises between the parties, or if any matter or issue arises which the parties wishes to have resolved or remedied (Dispute) a party may serve a notice of Dispute on the other (Dispute Notice) and the parties will enter into negotiations in good faith to attempt to resolve the dispute within 15 Business Days (or such longer period as the parties may agree) of the date of the Dispute Notice.

 

8.2 If the parties cannot resolve the dispute, mediation may be initiated by either party writing to the other party. No additional or further claim or action may be taken by either party without first attempting mediation, which shall take place in Auckland. The parties will agree on a suitable person to act as mediator or will ask the Arbitrators' and Mediators' Institute of New Zealand Inc. (AMINZ) to appoint a mediator if they cannot agree on a suitable person. The mediation will be in accordance with the Mediation Protocol of AMINZ.

 

8.3 If any dispute arises between the Customer and the Retailer, Commercial Utilities shall use reasonable endeavours to facilitate a resolution for the Customer but shall have no responsibility or liability if the claim or dispute can be settled with Commercial Utilities assistance. Nothing in this Agreement prevents the Customer from pursuing a claim or following the prescribed process with Utilities Disputes directly against a Retailer.

https://www.utilitiesdisputes.co.nz/UD/Disputes/Energy_electricity_and_gas/Can_we_look_into_your_complaint_/UD/Disputes/Can_we_look_into_your_complaint.aspx?hkey =c1e8a3df-b01b-443e-b252-116b7e1e002e 

 

8.4 Interlocutory Relief: Nothing in this clause 8 will prevent any party from taking immediate steps to seek urgent interlocutory relief before an appropriate Court.

9. GENERAL

9.1 Circumstances beyond our control: Notwithstanding any other provision of this Agreement, non-performance by a party of its obligations under this Agreement (other than payment of the Charges) shall be excused, without liability for non performance, during the time and to the extent that such performance is prevented, wholly or partly, by any act of God, fire, earthquake, storm, flood, landslide, strike, lockout, work stoppage or other labour hindrance, explosion or public mains electrical supply failure, sabotage, riot, civil disturbance, national emergency, health emergency, epidemic or pandemic, terrorism, act of war or any other cause beyond the non-performing party’sreasonable control. If performance continues to be prevented or suspended for more than 45 days, either party may cancel this Agreement by notice in writing to the other party.

 

9.2 Assignment: The Customer may not assign their rights and obligations under this Agreement without our consent which will not be unreasonably withheld. The assignee shall if we require, enter into a Deed of Assignment or replacement Agreement at your cost. We may assign, novate, delegate or sub-licence (“transfer”) our rights and obligations under this Agreement at any time. We shall use our best endeavours to ensure the transferee assumes all future obligations from the date of assignment. We shall be released and discharged from any ongoing or future obligations from the date of assignment.

 

9.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, representations, arrangements or understandings between the parties in any way relating to the subject matter thereof.

 

9.4 Severability: If any part of this Agreement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable such determination shall not impair the enforceability of the remaining parts of this Agreement which shall remain in full force.

 

9.5 No waiver: No waiver of any breach, or failure to enforce any provision, of this Agreement at any time by us shall in any way affect, limit or waive our right thereafter to enforce and compel strict compliance with the provisions of this Agreement.

 

9.6 Notices: All notices to be given pursuant to this Agreement shall be in writing and may be delivered or sent by courier, tracked mail or email to the address of the parties detailed in the Schedule. Every notice shall be deemed served, given or received on the date and time of receipt or recorded delivery time. The parties may update their addresses by similar notice. A party is entitled to rely on an address being current unless notified otherwise.

 

9.7 Governing law: This Agreement will be governed by, and construed in accordance with, the laws of New Zealand. The parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.

 

9.8 Counterparts: This Agreement may be signed in any number of counterparts, including facsimile or scanned copies, all of which shall together constitute one and the same instrument and a binding and enforceable agreement between the parties. Any party may execute this Agreement by signing any such counterpart.