ELX
The Energy Exchange
 
 Powered by Energy Link
 

Terms and Conditions - Customers

  1. Terms and Conditions
    1. These terms and conditions apply to Customers and Representatives, and are intended to ensure the integrity of Requests for Proposals (“RFPs”) and Auctions run on the Energy Exchange web site.
    2. These terms and conditions of use relate to the services provided by Energy Link Ltd either via or in relation to the Energy Exchange web site and its online exchange platform.
    3. By registering as a user of the Energy Exchange web site and indicating agreement to these terms and conditions, the Customer and its Representatives accepts these terms and conditions.
    4. For avoidance of doubt the Energy Exchange web site code of conduct, which is provided on the Energy Exchange web site, is for information only and does not form part of this agreement.
    5. Customers agree that these terms and conditions may be varied, modified, terminated or suspended at the sole discretion of Energy Link, with any variation or modification taking effect from the time it is notified on the Energy Exchange web site.
    6. Access to and use of the Energy Exchange web site is a privilege which may be revoked or denied in any particular case without giving reasons.
  • Definitions
    1. Energy Link  means Energy Link Limited
    2. ICP  means Installation Control Point and for electricity supply has the meaning given to it in Part 1 of the Electricity Industry Participation Code as reproduced below:
      1. a point of connection at which a customer installation is connected to a network other than the grid:
      2. a point of connection between a network and an embedded network:
      3. a point of connection between a network and shared unmetered load.  and for gas supply has the meaning given to it in the 2013 Amendment Version of the Gas (Downstream Reconciliation) Rules 2008 as reproduced below:
      4. the point at which a consumer installation is deemed to have gas supplied and which represents the consumer installation on the Registry.
    3. FPVV  means Fixed Price Variable Volume and is a type of contract for energy supply under which the prices are fixed in advance for all energy supplied at a particular ICP during a defined period.
    4. Pricing Plan  means the tariff applying to an ICP and includes the prices charged and the parameter upon which the charge is made including, but not limited to, energy consumption in kWh, power demand in kW or kVA, and ICP capacity in kW or kVA.
    5. NHH  means non-half hourly and NHH ICP  refers to an ICP at which either the existing meter is a NHH meter or which is currently on a NHH Pricing Plan.
    6. TOU  means time of use and refers to a meter which records electricity consumption data half hourly and TOU ICP  means an ICP at which the existing meter is a TOU meter and is currently on a TOU Pricing Plan.
    7. RFP  means a request initiated on Energy Exchange by a Customer for proposals from Retailers for supply under FPVV contract in respect of nominated ICPs.   Offers made pursuant to an RFP or Auction are for energy only in the case of ICP that is a TOU ICP, and for energy and lines in the case of an ICP which is an NHH ICP.  A Retailer may submit multiple confidential supply offers to an RFP but offers submitted after the closing date may only be applied if Energy Link so elects in the particular circumstances.  
    8. Auction  means an RFP which is tightly constrained to a fixed list of ICPs, fixed supply start and end dates, in which Retailers may submit multiple offers during a short Auction period, and in which participating Retailers see the anonymous offers submitted by other Retailers.  The use of the term “Auction” in reference to Energy Exchange is for convenience only and an Energy Exchange Auction is not an Auction under the Auctioneers Act 2013.
    9. Customer  means a large energy user seeking to contract for energy supply and using the Energy Exchange web site as part of the contracting process.  It may also, at the sole discretion of Energy Link, include an aggregation of entities which register as a single group.
    10. Registry  is the central database of ICPs as defined by the Electricity Industry Participation Code.
    11. Representative  means, depending on context, an authorised representative of a Customer.
    12. Retailer  means an electricity supplier that has entered into an agreement with Energy Link to participate in RFP’s and/or Auctions via the Energy Exchange web site.
    13. Initiation  of an RFP or Auction is the point when, after notification by Energy Link, either directly or via the Energy Exchange web site, of fees or confirmation that fees will be in accordance with the pricing schedule (if any), Energy Link either directly or via the Energy Exchange web site, with the approval of the Customer, enters the RFP or Auction into the Energy Exchange web site online exchange platform.
  • Statement of Purpose
    1. The Energy Exchange web site is provided for the use of Customers for the purposes of running RFPs or Auctions for energy procurement on an FPVV basis, and for Retailers to respond to such RFPs and Auctions.  The Energy Exchange web site provides for the exchange of information between a Customer and one or more Retailers, generally leading to the selection of one or more preferred Retailers for energy supply under a new or renewed FPVV contract.  Contracts are not made via the Energy Exchange web site but are made directly between the Customer and the relevant Retailers after the RFP and/or Auction has run its course.
  • Authorisations
    1. The Customer and their respective Representative warrant to Energy Link that the Representative has authority to act on behalf of the Customer, and indemnify Energy Link against any and all claims arising in any way whatsoever in regard to the use of the Energy Exchange web site by the Representative outside of the acceptable use defined in clause 14 of the General Terms and Conditions.
  • Customer is a Large Energy User
    1. The Customer warrants that it has at least 10 ICPs under its control to put through the Energy Exchange web site or that its total electricity consumption exceeds on a continuing basis, or is likely in the immediately ensuing 12 month period to exceed, $75,000 per annum excluding GST.
  • Consent to Use Information
    1. The Customer consents to the Energy Exchange web site or Energy Link providing any information entered into the Energy Exchange web site to Retailers along with RFP or Auction data.
  • No Obligation to Select a Retailer or to Make an Offer
    1. A Customer may select one or more Retailers to which an RFP or Auction is to be sent, and is under no obligation to include any particular Retailer.  A Retailer is not obliged to make an offer on any particular RFP or Auction.
  • Analysis of Offers
    1. In order to estimate the costs that would occur under an offer from a Retailer, the Energy Exchange web site may when it thinks appropriate adjust various parameters which are used in estimating annual energy costs including, but not limited to, the energy demand profile at an ICP and the power demand at an ICP.   Energy Link will exercise good faith in making such adjustments but will have   no liability whatsoever for the accuracy of the adjustments.
  • Consolidated Information
    1. The Customer permits Energy Link to include the pricing information resulting from the running of an RFP or Auction in consolidated information including but not limited to price indices, and RFP and auction reviews, which may be provided to Retailers and other Customers.  Energy Link will take all steps practicable to ensure no identifying information is released in such consolidated form.
  • Pricing
    1. The Customer shall pay a fee to Energy Link. The fee shall be calculated in accordance with any pricing schedules listed on the Energy Exchange web site or on a basis notified to the Customer prior to initiating an RFP or Auction.  Fees notified to a Customer shall prevail over pricing schedule fees.  Energy Link reserves the right to charge an additional fee where the Customer has requested support over and above the free support allowed for in clause 20.1.  The additional fee shall be based on the time required to provide the additional support at the rate shown in the pricing schedule (if any) and otherwise at Energy Link’s usual charge out rates for similar services, plus charges for supporting material provided by Energy Link including, but not limited to, data from Energy Link forecasts of electricity prices.  Charges for supporting material will be advised to the Customer prior to the material being provided.
    2. Fees are listed in the pricing schedule exclusive of GST.
    3. Fees shall be reviewed from time to time and the outcome of the review notified on The Energy Exchange web site at least one calendar month prior to the new fee coming into effect.  
  • Payment
    1. Unless agreed otherwise in any particular case payment of fees is required in full on the 20th of the month following the date of invoice.
    2. Payment shall be in New Zealand dollars.
    3. Energy Link reserves the right to add to an invoice which remains unpaid after the due date, an amount not exceeding the direct cost paid by Energy Link to a debt collection agency in respect of collecting payment on that invoice.  Before any such action is taken, Energy Link shall make reasonable efforts to make contact to discuss the reason for late payment.
    4. Payment of the Energy Exchange web site fee in full is required even if the Customer does not switch to a new Retailer after an RFP or Auction.
  • No Direct Approach
    1. Other than for the purpose of day-to-day contact in the normal course of business with a Retailer that already supplies one or more the Customer’s ICPs, the Customer shall not during the period between sending an RFP or Auction request to Retailers, and either the RFP closing or the Auction closing, make, nor respond to, direct contact with any Retailer and shall contact Energy Link with any Retailer queries for handling by Energy Link
  • Cancellation by Customer
    1. Having initiated an RFP or Auction on the Energy Exchange web site, the Customer may subsequently cancel the RFP or Auction prior to its closing date by contacting Energy Link, but will remain liable for the full fee.  If such cancellation occurs prior to any offers being received from one or more Retailers then a partial refund may be given at the sole discretion of Energy Link.
  • Acceptable Use of the Energy Exchange Web Site
    1. The Customer may use the Energy Exchange web site for the purpose of running or responding to genuine energy RFPs or Auctions, but must not infringe Energy Link’s intellectual property rights.
    2. Specifically but not by way of limitation, the Customer must not:
      1. reproduce, duplicate, copy, adapt, publish, frame, upload, post, cache, mirror, link to, distribute, use or otherwise communicate or re-sell any part of the Energy Exchange web site, or results generated from the Energy Exchange web site or any data generated from an RFP or Auction;
      2. access without authority, interfere with, damage or disrupt any part of the Energy Exchange web site, attempt to hack into the Energy Exchange web site or any equipment or network on which the Energy Exchange web site resides;
      3. attempt to reverse engineer the Energy Exchange web site.
    3. The Customer is to limit access to logins and accounts on the Energy Exchange web site to authorised personnel working for or on behalf of the Customer.
    4. The Customer agrees not attempt to manipulate the Energy Exchange web site, or the RFP or Auction process, or to use the same other than in strict accordance with these terms and conditions and for the purpose detailed in clause 3.1 of the General Terms and Conditions.
    5. The Customer must not use automated software to access the Energy Exchange web site.
  • Confidential Information
    1. Offers received from a Retailer via the Energy Exchange web site pursuant to an RFP or Auction are confidential to the Retailer and neither Energy Link nor the Customer may share any information contained within the offers with another Retailer or with any third party.  Energy Link accepts no liability whatsoever for the release of confidential information by a Customer.  
    2. The Customer acknowledges that it is in the nature of Energy Link’s business that it may receive information of a confidential nature, which it is unable to disclose to the Customer or to use or make allowance for in provision of the services to the Customer either directly or indirectly via the Energy Exchange web site or otherwise.  The Customer acknowledges that the existence of such circumstances will not constitute a breach by Energy Link.
    3. The Customer shall comply with any and all obligations of confidentiality in these terms and conditions or otherwise communicated by Energy Link generally or in any particular case.
    4. Energy Link respects the commercial sovereignty of Customers and will use reasonable care to ensure that confidential or sensitive information disclosed by the Customer to Energy Link is not divulged to other parties.
    5. Nothing herein will prevent Energy Link using confidential information in the manner detailed in clause 9.1 of the Terms and Conditions.
  • No Guarantee of Outcome
    1. The Customer acknowledge that there is uncertainty about the energy pricing and other terms that may be attained either directly or indirectly as the result of running an RFP or Auction through the Energy Exchange web site.  The Energy Exchange web site or Energy Link may provide the Customer with an indication of expectations regarding the range of pricing or terms prior to initiating an RFP or Auction but does not guarantee any particular level of pricing or terms.
    2. It is up to the Customer to contract with the successful Retailers subsequent to running an RFP or Auction and Energy Link does not warrant that pricing indicated in Retailers’ offers will actually be offered in any contract(s) agreed between the Customer and successful Retailer(s).
    3. Energy Link does not guarantee the level of response, if any, to RFPs or Auctions run on the Energy Exchange web site by the Customer.
    4. Energy Link is reliant on Retailers and the Registry providing consumption and other data into the Energy Exchange web site and does not guarantee the accuracy of consumption and other data provided to Retailers pursuant to running an RFP or Auction.
  • Interruption of service
    1. Energy Link may at any time, at its sole discretion, interrupt an RFP or Auction process for the purposes of, but not limited to, verifying that details of the Customer authorisation are correct, or verifying that the Customer meets the minimum criteria for being a large energy user, or resolving any issues or uncertainties that it becomes aware of, or attempting to ensure the best outcome for the Customer, or protecting the interests of Energy Link or a Retailer or the integrity of the Energy Exchange web site.  Energy Link shall advise the Customer of the reason for the interruption, the length of time the interruption is expected to continue, and shall update the Customer each Business Day.
    2. Energy Link may at any time, at its sole discretion, interrupt operation of the Energy Exchange web site for the purposes of site maintenance, site integrity checks, site upgrades, site backups, or resolution of other issues that may occur from time to time.  Energy Link will make reasonable endeavours to maintain normal operation of the Energy Exchange web site during business hours but does not guarantee any particular hours of operation.
  • Limitation of Liability
    1. The liability of Energy Link to any Customer in any way arising from or relating to the provision or performance of the Energy Exchange web site shall for all purposes be limited to the total price paid by that Customer to Energy Link in relation to the use of the Energy Exchange web site in the preceding 12 months.
  • Forecasts
    1. The Customer acknowledges that some of the information provided, either via the Energy Exchange web site or by Energy Link in providing support, may require Energy Link to make predictions of the outcome of future events including, but not limited to, electricity prices or developments in the electricity industry.  Energy Link will be subject to an obligation of good faith in making such predictions, but other than for breach of their good faith obligation, Energy Link shall not in any way be held liable for the actual outcomes of the specified events, for the accuracy of its predictions or for any special or consequential damages or losses resulting from the Customer’s use of the Energy Exchange web site or Energy Link’s services.  The Customer also acknowledges that subsequent predictions will change as new information becomes known to Energy Link.
  • Support
    1. Unless otherwise requested, and paid for, by the Customer, the Customer shall be entitled to receive two (2) hours of free support from Energy Link per month for the purposes of running one or more RFPs or Auctions through the Energy Exchange web site, which shall be provided either by phone or by email.  Energy Link shall use reasonable endeavours to respond to all requests within two hours provided such requests are submitted between the hours of 8 am and 3 pm on days that are normal business days in Dunedin.
  • Intellectual Property
    1. Energy Link shall retain ownership and all rights to the use of the copyright and other intellectual property contained in any and all original work used to create the Energy Exchange web site and the functions it performs or to deliver services to the Customer on the Energy Exchange web site or while providing support to the Customer.  The Customer shall not publish, distribute, copy or use such original work without on each occasion obtaining the prior written permission of Energy Link.
  • General Conditions
    1. Consumer Guarantees Act:   The Customer acknowledges that it is a business and that the provisions of the Consumer Guarantees Act do not apply.
    2. Disputes:
      1. In the event of a dispute or difference in relation to any matter arising in respect of the Energy Exchange web site or in respect of these terms and conditions, the Customer shall notify Energy Link at the earliest time of the details of the dispute or difference.  Energy Link and the Customer shall endeavour to settle the dispute or difference amicably within 20 working days of the notification.  The Customer shall not withhold payment for any portion of the Services that is not the subject of the dispute or difference.
      2. The Customer acknowledges that Energy Link is not a party to any contract for energy supply arising from use of the Energy Exchange web site for running an RFP or Auction, and that the Customer will not involve Energy Link in any dispute arising from such a contract.
    3. No Waiver:  No failure or delay on the part of Energy Link to exercise any right or remedy under this agreement is a waiver of such right or remedy nor does any single or partial exercise of any right or remedy under this agreement preclude the exercise of any other right or remedy or preclude the further exercise of such right or remedy as the case may be.
    4. Severance:  If any term of this agreement is illegal, invalid or unenforceable for any reason whatsoever including, but without limitation, as a result of any legislation or other provisions having the force of law or any decision of any court or other body or authority having jurisdiction, such term will be deemed to be deleted from this agreement and all other terms shall remain in force.
    5. Force Majeure:  If Energy Link is unable to maintain the normal operation of the Energy Exchange web site as a direct or indirect result of any equipment or system failure or any event beyond the control of Energy Link, then Energy Link will provide the Customer with notice as soon as reasonably practicable of the nature of the event, the scope of the limitation in operation of the Energy Exchange web site, and the expected time frame for return to normal operation.
    6. Governing Law:   These terms and conditions are governed by and construed in accordance with the laws of New Zealand for the time being in force, and the Customer and Energy Link agree to submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
    7. Headings:  Headings are for reference purposes only and do not form part of this agreement.