Major customer enquiry terms and conditions

1. Commencement and Preliminary Assessment

1.1 By completing and submitting an Enquiry Form, the Customer agrees to enter into this Contract with Western Power on the terms set out in this Contract, commencing upon Western Power’s receipt of the Enquiry Form (Commencement Date).

1.2 Following Western Power’s review of the Enquiry Form, Western Power will notify the Customer (whether verbally or otherwise) whether Western Power:

(a) will proceed with the Enquiry Work, in which case Western Power will issue a written quotation detailing the required Enquiry Work and associated Processing Cost Estimate, and issue a Tax Invoice for the Processing Cost Estimate quoted; or

(b) will not proceed with the Enquiry Work in which case this Contract shall terminate with immediate effect, and the Customer agrees that it has no Claim against the Western Power, and Western Power shall have no liability whatsoever to the Customer, in connection with such termination.

2. Enquiry Work

2.1 Subject to clause 2, Western Power agrees to perform the Enquiry Work under this Contract in consideration of the Customer paying the Processing Cost.

2.2 The Customer agrees that at the Commencement Date, the Enquiry Work is comprised of the Enquiry Work notified by Western Power under clause 2(a) only.

2.3 If at any time after the Commencement Date, Western Power considers (acting reasonably) that additional work is required to process the Enquiry in accordance with clause 18 of the AQP, Western Power will issue the Customer with a written proposal (Proposal) for that additional work.

2.4 If the Customer receives the Proposal under clause 3 and, within 60 Business Days of receipt, returns a signed copy of that Proposal to Western Power, then this Contract is deemed amended to include the requirements of that Proposal.

2.5 If the Customer does not return a signed copy of the Proposal within 60 Business Days of receipt, Western Power may terminate this Contract by notice to the Customer under clause 1(a).

2.6 Western Power is not obliged to commence the performance of any Enquiry Work until the Customer has paid in full the Processing Cost Estimate.

2.7 Western Power may withdraw a Proposal at any time by providing notice to the Customer if the customer has not returned a signed copy of the Proposal to Western Power.

2.8 Each Proposal issued by Western Power under this Contract is a ‘proposal’ for the purposes of clause 20.2 of the AQP.

3. Processing Cost Estimate and Processing Cost

3.1 The Processing Cost Estimate is based on a forecast of the total cost of performing the Enquiry Work, is calculated based on the best-known information at the time of preparing this Contract and any Proposal (as applicable) and is not final or binding on Western Power.

3.2 The Customer acknowledges and agrees that:

(a) the Processing Cost Estimate is indicative only in accordance with clause 3.1;

(b) Western Power is not obliged to inform the Customer of any variation to the Processing Cost Estimate; and

(c) the Processing Cost will be determined in accordance with clause 5 of this Contract.

3.3 Western Power, to the extent permitted by law, accepts no liability and the Customer will have no claim or right or cause of action against Western Power, for any errors or omissions or for any discrepancy between the Processing Cost Estimate and the Processing Cost.

4. Payment and Tax Invoice Terms

4.1 The Customer acknowledges and agrees that where Western Power is entitled to issue a Tax Invoice under this Contract, the Tax Invoice will be payable by the Customer in accordance with clause 2 of this Contract.

4.2 Unless otherwise specified in this Contract the Customer must pay:

(a) a Tax Invoice issued by Western Power under this Contract by the due date specified on the Tax Invoice; and

(b) by direct electronic transfer into a bank account nominated by Western Power on the Tax Invoice.

4.3 Western Power may elect to commence recovery action against the Customer for any outstanding amount should the Tax Invoice not be paid by the Customer in accordance with clause 2 of this Contract.

5. Determination of Processing Cost

5.1 Western Power will determine the Processing Cost in accordance with this clause 5 when:

(a) Western Power determines that all of the Enquiry Work under this Contract is completed; or

(b) this Contract is terminated for any reason.

5.2 Within six months of:

(a) the Enquiry Work being deemed complete by Western Power; or

(b) the effective date on which this Contract is terminated,

Western Power will determine the Processing Cost of performing the Enquiry Work up to the date of completion or termination (as applicable), and to the extent that the Processing Cost Estimate paid by the Customer:

(c) is greater than the Processing Cost, Western Power will process a refund to the Customer in respect of the difference; or

(d) less than the Processing Cost, Western Power will issue a Tax Invoice to the Customer in respect of the difference, as soon as reasonably practicable.

5.3 No interest will be payable by Western Power to the Customer in respect of the amount refunded in accordance with clause 2(c) or otherwise.

6. Customer Acknowledgements

6.1 The Customer acknowledges and agrees that:

(a) the lodgement of the Enquiry Form is not a Connection Application under the AQP;

(b) timeframes for the performance of Enquiry Processing Work are indicative only and are not guaranteed by Western Power;

(c) Western Power may, in its sole discretion, determine the priority of the Enquiry in accordance with the Critical Projects Framework or otherwise; and

(d) Western Power is not responsible for any delays experienced by the Customer;

(e) the product of any Enquiry Work is indicative only as at the time of completion, not binding on Western Power, subject to change and does not guarantee the Customer requirements detailed in the Enquiry Form will be satisfied; and

(f) the Customer is not guaranteed to proceed to a Connection Application.

7. Customer Representations and Warranties

7.1 The Customer represents and warrants to Western Power that:

(a) it (or its representative or agent) is duly authorised to submit the Enquiry Form; and

(b) it will provide evidence of any authority as requested by Western Power.

8. Default

8.1 If the Customer:

(a) breaches any provision of this Contract; and

(b) fails to remedy the Default within 10 Business Days after receiving a written notice from Western Power (or such further time as specified in the notice or agreed to by Western Power in writing),

Western Power may, by notice to the Customer:

(c) suspend the Enquiry Work until the Default has been remedied to Western Power’s satisfaction (acting reasonably); or

(d) terminate this Contract.

8.2 The exercise or non-exercise of a right under clause 1 does not limit Western Power's right to recover an outstanding amount as a debt due and owing.

9. Liability and indemnity

9.1 Notwithstanding anything in this Contract, Western Power will have no liability whatsoever to the Customer, and the Customer will not make any Claim against Western Power, for:

(a) the manner or time in which Western Power performs the Enquiry Work;

(b) any defect or failure in the performance of the Enquiry Work; or

(c) the Enquiry Work not producing connection options supporting, or otherwise enabling, the Customer requirements described in the Enquiry Form.

9.2 The Customer acknowledges and agrees that this Contract may be pleaded as a bar to any suit, action, proceedings, appeal or review arising out of or in respect of any matter set out in clauses 2(b), 2.5, 5 and 6.

9.3 The Customer releases and indemnifies Western Power against any Claim arising out of or in connection with the Enquiry Work, or in connection with the acts or omissions of the Customer, its contractors or agents (including any errors or omissions in any information submitted by the Customer to Western Power). The indemnity will extend to any Claim made by a person claiming through, or under, the Customer, and any costs (including legal costs on a solicitor-client basis) incurred by Western Power in defending such a Claim.

9.4 In no circumstances will either Party be liable to the other for any Indirect Loss whether arising by law, in contract, tort or equity or otherwise.

10. Termination of Contract

10.1 This Contract will terminate with immediate effect from:

(a) the date on which the Customer provides notice to Western Power, terminating this Contact for its sole convenience;

(b) Western Power gives notice of termination to the Customer under clause 2(b), 2.4 or 8.1(d); or

(c) Western Power giving notice of termination due to the Applicant failing to demonstrate, to Western Power’s reasonable satisfaction, that the Applicant is authorised to act for and on behalf of the Customer.

10.2 Any termination under this clause 10 will be without prejudice to any Party’s claims, liabilities, rights or obligations which have accrued prior to the termination date.

10.3 Clauses 2(b), 3.3, 4, 5, 6, 8.2, 9.2, 10.2, 11, 12, 13.10, 13.11, 13.13, 14, 15 survive the termination of this Contract and will continue in full force and effect.

11. GST

11.1 All charges and amounts payable by one Party to another under this Contract are exclusive of GST (including the Processing Cost and Processing Cost Estimate), unless expressly stated otherwise.

11.2 For each Taxable Supply under or in connection with this Contract:

(a) the supplier will be entitled to charge the Recipient for any GST payable by the supplier in respect of the Taxable Supply;

(b) the Recipient must pay to the supplier the amount of the GST at the same time as the relevant charge applicable to the Supply becomes payable under the Contract;

(c) the supplier must provide a valid Tax Invoice (or a valid Adjustment Note) to the Recipient in respect of the Taxable Supply and will include in the Tax Invoice (or Adjustment Note) the particulars required by the GST Act. The Recipient is not obliged to pay the GST unless and until the Recipient has received a Tax Invoice (or an Adjustment Note) for that Supply; and

(d) If the actual GST liability of the supplier differs from the GST paid by the Recipient, the supplier will promptly create an appropriate valid Adjustment Note, and the Recipient will pay to the supplier any amount underpaid, and the supplier will refund to the Recipient any amount overpaid.

11.3 Each invoice issued under this Contract will be in the form of a Tax Invoice and must show the GST payable on Supplies covered by that invoice.

11.4 If any Party is entitled to payment of any costs or expenses by way of reimbursement or indemnity, the payment must exclude any part of that cost or expense which is attributable to GST for which that Party or the representative member of any GST Group of which that Party is a member is entitled to an Input Tax Credit.

12 Work Data & Confidentiality

12.1 All of the Work Data will be owned by Western Power.

12.2 Subject to clause 3, the Customer will have the right to use the Work Data for the purposes of making and progressing a Connection Application and any associated electricity transfer application.

12.3 Subject to this clause 12, each Party must keep Confidential Information confidential.

12.4 A Party may disclose Confidential Information:

(a) as reasonably required for the performance of this Contract;

(b) in accordance with clause 6 of the AQP;

(c) where the disclosure is required or allowed by law or by an Arbitrator or Court or tribunal constituted by law;

(d) to a Government Agency (including the Economic Regulation Authority, Energy Policy WA and the Australian Energy Market Operator);

(e) where the information has entered the public domain other than by breach of this Contract;

(f) where the information could be inferred by a reasonable and prudent person from information already in the public domain; and

(g) where otherwise approved in writing by the other Party.

13. Miscellaneous Provisions

13.1 (Relationship of the Parties) The relationship of the Parties is that of independent Parties and nothing in this Contract will be construed so as to constitute one Party a partner, joint venturer, agent, employee or representative of the other, or to create any partnership or trust for any purpose whatsoever.

13.2 (Additional provisions) The additional provisions (if any) set out in a Proposal apply to and are incorporated in this Contract, subject to the Customer’s acceptance of that Proposal pursuant to clause 4 of this Contract.

13.3 (Entire agreement) This Contract contains the entire agreement between the Parties with regard to its subject matter. Any previous understanding, agreement, representation or warranty relating to the Enquiry Work, a Processing Cost Estimate or the Processing Cost is replaced by this Contract and has no further effect.

13.4 (Assignment and sub-contracting) The Customer may dispose of, declare a trust over, or otherwise create an interest in its rights under this Contract, or subcontract any of its responsibilities or obligations, only with Western Power’s prior written consent, which Western Power may grant or withhold at its discretion and on such terms as it may deem appropriate.

13.5 (Variation) Subject to clause 4, if the Parties want to amend, supplement, replace or novate this Contract, they must do so only by another document signed by each of them.

13.6 (Waiver) The failure of either Party to enforce any provision of this Contract will not affect that Party’s rights to require complete performance by the other Party, nor will the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself. Any waiver to be effective must be in writing and signed by or on behalf of the Party granting the waiver.

13.7 (Severance) If any part of this Contract is or becomes void, voidable or otherwise invalid or unenforceable, whether due to the provisions of any statute or otherwise, that part:

(a) will be read down, if possible, so as to be valid and enforceable; or

(b) will be severed from this Contract to the extent that all parts of this Contract that are not or do not become void, voidable or otherwise invalid or unenforceable will remain in full force and effect and be unaffected by such severance.

13.8 (Supplementary rights) Any right that a Party may have under this Contract is in addition to (and does not replace or limit) any other right that the Party may have.

13.9 (Giving effect to the Contract) At the Customer’s cost, the Customer must do anything (including execute any document) and must ensure that its officers, employees and agents do anything (including execute any document), that Western Power may reasonably require to give full effect to this Contract.

13.10 (Notices and service) A notice required or permitted to be given by a Party to another Party under this Contract is effective only if it is in writing, signed by the Party giving or issuing it and either delivered by hand to the addressee's Address or sent to the addressee’s Address by mail (air mail if sent internationally or email. The following rules apply for determining the manner and time of service:

(a) If a notice is sent by mail, it is taken to have been received on the third Business Day after it is posted if posted within Australia, or on the tenth Business Day after posting if posted internationally.

(b) Subject to clause 10(c):

(i) if a notice is delivered by hand, on delivery; or

(ii) if a notice is delivered by email, a scanned copy of the notice must be attached to the email and it is taken to have been received one hour after the email was sent, unless the sender receives notification from its or the recipient’s email server that the email is undeliverable or was not delivered.

(c) Where a notice is delivered or taken to have been delivered on a day that is not a Business Day, or after 4:30 pm on a Business Day, then the notice will be taken to have been received at 9:00 am on the next following Business Day.

13.11 (Multiple parties) If the Customer is made up of more than one person, the following rules will apply:

(a) an obligation imposed on the Customer is imposed jointly and severally on those persons who comprise the Customer;

(b) a right of those persons who comprise the Customer is held by each of them severally;

(c) any other reference to the Customer, is a reference to each of those persons who comprise the Customer separately, so that (for example) a representation, warranty or undertaking is given by each of them separately; and

(d) this Contract is enforceable against and binds each and every person who executes it, notwithstanding that any other person referred to in this Contract has not executed it, or any other person has failed to perform any obligation or undertaking in it.

13.12 (Electronic acceptance) The Customer acknowledges and agrees that their electronic acceptance of the Enquiry Form constitutes a valid and binding agreement with Western Power.

13.13 (Governing law) This Contract is governed by and will be interpreted in accordance with the laws of Western Australia and, to the extent to which they are applicable, the laws of the Commonwealth of Australia. Each Party submits to the exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any court that may hear appeals from any of those courts, for any proceedings in connection with this Contract, and waives any right it might have to claim that those courts are an inconvenient forum.

14. Interpretation

The following rules apply in interpreting this Contract, except where the context makes it clear that a rule is not intended to apply:

14.1 headings are for convenience only and do not affect interpretation;

14.2 words used in this Contract which have a defined meaning in the dictionary (see clause 15) shall be interpreted with the defined meanings;

14.3 where an expression is defined in this Contract, another part of speech or grammatical form of that expression will have a corresponding meaning;

14.4 a singular word includes the plural, and vice versa;

14.5 words denoting any gender include every other gender;

14.6 the fact that Western Power prepared this Contract will not be taken into account as a basis for interpreting this Contract, or any part or parts of it, adversely to Western Power’s interest;

14.7 if an example is given of anything, including a right, obligation or concept, such as by saying it includes something else, the example does not limit the scope of that thing;

14.8 A reference to:

(a) this Contract, or to any other instrument, includes any amendment, variation, novation or replacement of it;

(b) a clause is a reference to a clause of or to this Contract, unless the context requires otherwise;

(c) any legislation, statute, ordinance, code or act, or other law, includes regulations or other instruments under it and consolidations, amendments, re-enactments or replacements of them;

(d) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, authority, trust, State or Government and vice versa, and any executor, administrator or successor in law of the person;

(e) any party means and includes a reference to that party and its executors, administrators, successors, substitutes (including, without limitation, persons taking by novation), transferees and permitted assigns and, if a body corporate, its directors, officers, agents, servants and employees;

(f) anything, including a right, obligation or concept, includes each part of it; and

(g) any currency is a reference to Australian dollars;

14.9 if this Contract does not specify a time within which any act or thing must be done, such act or thing must be done as soon as reasonably practicable and as often as the occasion arises;

14.10 if the day on which any act, matter or thing is to be done under this Contract is not a Business Day, that act, matter or thing may be done on the next Business Day;

14.11 subject to any law to the contrary, where the doing or execution of any act, matter or thing is dependent on the consent or approval of a Party, that consent or approval will not be unreasonably withheld or delayed;

14.12 words importing an obligation on a Party to do any act, matter, or thing, include an obligation to procure that it be done and words placing a Party under a restriction include an obligation not to permit or allow infringement of the restriction;

14.13 terms used in this Contract which are defined in the GST Act, including “GST”, “Supply”, “Adjustment Note”, “Input Tax”, “Credit”, “Recipient”, “Taxable Supply”, “GST Group” and “Tax Invoice” which are used throughout this Contract, have the same meanings in this Contract;

14.14 any other term used in this Contract which appears in inverted commas and is not otherwise defined has the meaning given in the AQP, the Access Arrangement, or the Code, in that order of priority, unless otherwise expressly stated; and

14.15 in the event of any inconsistency between this Contract and the AQP, the AQP will prevail to the extent of the inconsistency.

15. Dictionary

The following definitions apply to this Contract, unless the context otherwise requires:

“Access Arrangement” means the current ’access arrangement’ (as defined in the Code) approved in respect of the Network under the Code.

“Address” means, in relation to a notice issued under this Contract, the addressee’s postal address or email address (as applicable).

“Applicant” is the company described in the ‘Contact Details - Applicant Details’ section of the Enquiry Form.

“AQP” means the ‘Applications and Queuing Policy’ (as defined in the Code) in the Access Arrangement.

“Business Day” means any day of the week other than a Saturday, Sunday or gazetted public holiday in Perth, Western Australia.

“Claim” means any claim, action, proceeding, judgment, damage, loss, cost, expense or liability whatsoever at law, in equity, under statute or howsoever arising.

“Code” means the Electricity Networks Access Code 2004.

“Commencement Date” is as defined in clause 1.1.

“Confidential Information” has the meaning given to ‘confidential information’ in clause 2.1 of the AQP and includes the Work Data, the Enquiry Form and any documentation lodged by the Customer in connection with the Enquiry Form.

“Connection Application” has the meaning given to ‘connection application’ under clause 2.1 of the AQP.

“Contract” means this contract, comprised of clauses 1 to 15 (inclusive), the Enquiry Form and any Proposal accepted by the Customer pursuant to clause 2.4. 

“Critical Projects Framework” means the framework published on Western Power’s website (as updated from time to time).

“Customer” is the Applicant except where the Applicant has lodged the Enquiry Form as agent for and on behalf of the company (the Principal) described in the ‘Contact Details - Customer Details’ section of the Enquiry Form, in which case the Principal shall be deemed the Customer and the Applicant an agent of the Customer.

“Default” means a breach of a provision of this Contract by the Customer.

“Enquiry” has the meaning given to ‘enquiry’ under clause 2.1 of the AQP.

“Enquiry Form” means the enquiry lodged by the Customer via the Western Power website which, on lodgement, shall be deemed an enquiry lodged by the Customer under section 18 of the AQP.

“Enquiry Response Letter” means a letter issued by Western Power in response to an Enquiry pursuant to clause 18.2A of the AQP.

“Enquiry Work” means the activities or works notified by Western Power under clause 1.2(a), and all other works described in a Proposal accepted by the Customer pursuant to clause 2.4 and excludes the Enquiry Response Letter.

“Government Agency” means a government or government department or other body; a governmental, semi-governmental or judicial person; a local authority or a person (whether autonomous or not) who is charged with the administration of a law (but does not include Western Power).

“GST Act” means the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

“Indirect Loss” means Loss, howsoever caused, which is indirect or consequential, including without limitation loss of use, production, revenue, income, profits, business or savings.

“Loss” includes claims, liabilities, costs, expenses, loss or damage.

“Network” has the same meaning given to ‘Western Power Network’ in the Code.

“Party” means a party to this Contract.

“Parties” means every Party to this Contract.

“Processing Cost” means the total actual costs incurred by Western Power in performing the Enquiry Work.

“Processing Cost Estimate” means the estimated cost of the Enquiry Work as notified by Western Power to the Customer under clause 1.2(a) and any Proposal under clause 2.4.

“Proposal” is as defined in clause 2.3 of this Contract.

“Western Power” means the statutory body corporate established by section 4(1)(b) of the Electricity Corporations Act 2005 (WA).

“Work Data” means all information, studies, reports and data exchanged between the Parties for, and derived from, the performance of the Enquiry Work, in whatever form.