General Terms and Conditions for Transportation of Natural Gas in the West Austria Gasleitung (WAG)

Transcription

1 General Terms and Conditions for Transportation of Natural Gas in the West Austria Gasleitung (WAG) Baumgarten-Oberkappel Gasleitungsgesellschaft m.b.h. Floridsdorfer Hauptstrasse 1, floridotower, 1210 Vienna, Austria (hereinafter referred to as Carrier) General Terms and Conditions for Transportation of Natural Gas in WAG 1/24 Version effective from

2 - 2 - Article 1 Definitions 3 Article 2 Transportation Rights and Obligations 6 Article 3 Pressure 8 Article 4 Gas Quality 10 Article 5 Tariff 11 Article 6 Invoicing and Payment 12 Article 7 Guarantee 13 Article 8 Liability 15 Article 9 Warranty 16 Article 10 Force Majeure 17 Article 11 Change in Essential Circumstances 18 Article 12 Ineffective Provisions 19 Article 13 Assignment 20 Article 14 Confidentiality 21 Article 15 Miscellaneous 22 Article 16 Applicable Law and Language 24 Appendix 1 Quality Specifications Appendix 2 Operating Regulations a) Nomination b) Allotment c) Communication Appendix 3 Tariff Principles of BOG Appendix 4 Committed Capacity - Shifting General Terms and Conditions for Transportation of Natural Gas in WAG 2/24

3 - 3 - Article 1 Definitions 1.1 Except where explicitly otherwise stated the following capitalised terms shall have the meanings ascribed to them in this Article 1.1 which include the plural as well as the singular: AGGM shall mean AGGM Austrian Gas Grid Management AG the entity responsible inter alia for pressure control in the gas grid of the Regelzone Ost pursuant to the Austrian Gas Act (GWG). Capacity shall mean the capacity the Shipper commits to reserve in the WAG for transportation of Natural Gas from the Inlet to the Outlet Point, as specified in the transportation contract, expressed in Nm 3 /h at 0 C. Carrier shall mean Baumgarten-Oberkappel Gasleitungsgesellschaft m.b.h. and its assignees. Day shall mean a period of time beginning at 6:00 a.m. on any calendar day and ending at 6:00 a.m. on the following calendar day, with reference to the official Austrian time. The reference date of any Day is the date of the calendar day on which the Day begins. EURIBOR shall mean the European Interbank Offered Rate, published by the European Central Bank on the Due Date. EUR shall mean the currency unit of the European Union as constituted by legislation of the European Union (Euro). General Terms and Conditions for Transportation of Natural Gas in WAG 3/24

4 - 4 - Force Majeure as defined in Article 10. Gross Calorific Value shall mean a quantity of heat in MJ produced by the complete combustion of one cubic meter of natural gas at constant pressure ( bar absolute) with the air at the same temperature (25 ºC) and pressure as the gas, when the products of combustion are cooled to the initial temperature of the natural gas and the air and when water formed by combustion is condensed to the liquid state. Inlet Point as determined in the transportation contract. Month shall mean a period of time beginning at 6:00 a.m. on the first day of a calendar month and ending at 6:00 a.m. on the first day of the next calendar month, with reference to the official Austrian time. Natural Gas shall mean natural gas corresponding to the specifications as set out in Appendix 1. OMV Gas shall mean OMV Gas GmbH, with its registered offices at Floridsdorfer Hauptstrasse 1, floridotower, 1210 Vienna, Austria its successor or assignees. Operator shall mean OMV Gas. Outlet Point as determined in the transportation contract. Party shall mean a party to the transportation contract. Pressure shall mean the gauge pressure, which is the difference between the absolute pressure of the gas and the atmospheric pressure General Terms and Conditions for Transportation of Natural Gas in WAG 4/24

5 - 5 - expressed in bar (equal to one hundred thousand Pascal). Services shall mean all actions necessary for Carrier to provide access to the WAG System and include the transportation of natural gas, the management of nomination, the quantity and quality determination, the dispatching, the system operation and the invoicing. Services may be either on a firm basis or on an interruptible basis. Shipper shall mean the Party to the transportation contract or its assignee pursuant to Article 13 who has contracted Capacity according to the transportation contract and is taking advantage of Services. WAG System shall mean the pipeline West-Austria- Gasleitung (WAG) and all related facilities (such as compression stations, measuring stations, all inlet and outlet points). Week shall mean a period of time beginning each Monday at 6:00 a.m. and ending at 6:00 a.m. on the next Monday, with reference to the official Austrian time. 1.2 Measuring units not specifically defined herein shall be considered as defined in accordance with definitions stipulated in ISO Nm³ shall mean a quantity of gas, free of water, the volume of which is one cubic meter at 0º C temperature and under bar absolute pressure. General Terms and Conditions for Transportation of Natural Gas in WAG 5/24

6 - 6 - Article 2 Transportation Rights and Obligations 2.1 For the duration of the transportation contract and subject to the provisions of the transportation contract, Shipper has the right to have Natural Gas transported by Carrier from the Inlet Point to the Outlet Point not exceeding the Capacity. Carrier is not obligated to take delivery at the Inlet Point and transport quantities of Natural Gas in excess of the Capacity set forth in the transportation contract. 2.2 Subject to the provisions of the transportation contract and not exceeding the Capacity Carrier shall take over the Natural Gas quantities made available at the Inlet Point by Shipper and shall simultaneously make available to Shipper at the Outlet Point a volume of Natural Gas which is equivalent in terms of energy to the quantities of Natural Gas made available by Shipper at the Inlet Point minus the Fuel Gas to be made available in kind. If and for as long as Shipper does not off-take Natural Gas made available at the Outlet Point, Shipper shall immediately and to the same extent reduce the deliveries at the Inlet Point and Carrier shall not be obligated to take over the Natural Gas at the Inlet Point. 2.3 Carrier shall have no ownership in the Natural Gas transported for Shipper. 2.4 In case of disturbance excluding events of Force Majeure in the WAG System resulting in a reduction of the Capacity, Carrier shall use its best endeavours to minimise such reduction. The capacity after reduction shall be allocated in priority to the affected Shippers having firm Capacities in the ratio of their Capacities. The remaining capacity, if any, shall then be allocated to Shippers having interruptible Capacities in the ratio of their Capacities. If the Capacity of the Shipper is reduced, the payment for Services as specified in the transportation contract shall be reduced pro rata temporis in the ratio of its unavailable capacity divided by its Capacity. 2.5 If for reasons of Maintenance or Repairs (hereinafter called: Repairs ) Carrier acting reasonably and prudently is unable to transport the quantities of Natural Gas otherwise to be transported, Carrier shall have the right to decrease for General Terms and Conditions for Transportation of Natural Gas in WAG 6/24

7 - 7 - the duration of such event the Capacity available, provided Shipper has been duly notified by Carrier of the beginning, end and extent of such reductions in Capacity. Such notification has to take place in the following way: Step 1: Carrier has to inform Shipper one hundred (100) Days in advance about the start and the duration of a period in which Repairs will be carried out resulting in such capacity reductions. Step 2: Seven (7) Days in advance of the actual start of Repairs Carrier has to inform Shipper about the actual start and the end of Repairs and the extent of the resulting capacity reductions. If necessary, such dates may be changed with Shipper s consent, which shall not be unreasonably withheld. Carrier and Shipper shall endeavour to have transported the Natural Gas not transported due to Repairs in addition to the nominated quantities of Shipper before or after the period of Repairs, subject to the availability of transportation capacity and giving preference to firm transportation contracts. The payment for Services shall be reduced in accordance with the quantities actually not transported due to Repairs taking into account the quantities transported in accordance with the preceding paragraph and the monthly transportation program. 2.6 Rights and Obligations of Shipper and Carrier concerning operation, nomination, dispatching and determination of quantity and quality are described in detail in Appendix 1. General Terms and Conditions for Transportation of Natural Gas in WAG 7/24

8 - 8 - Article 3 Pressure 3.1 Inlet Point In case of physical delivery from Shipper to Carrier at the Inlet Point the following shall apply: Shipper shall not be entitled to deliver Natural Gas to Carrier at a Pressure lower than 49 bar gauge and higher than 70 bar gauge. Nevertheless, Carrier may accept at its sole discretion in-take of Natural Gas at a Pressure lower than 49 bar gauge. In any case such operation at a lower Pressure shall not disturb transportation for other shippers in the WAG System or create additional costs. 3.2 In any case Shipper shall indemnify Carrier for all properly documented losses, damages and costs incurred by Carrier resulting from the delivery of Natural Gas not complying with the requirements of this Article. 3.3 Outlet Point Carrier shall redeliver the Natural Gas at the Outlet Point at a Pressure according to the actual hydraulic condition in the WAG System but not higher than 70 bar gauge. In case that BOP13 is the Outlet Point, Carrier shall redeliver the Natural Gas at the Outlet Point at a Pressure according to the actual hydraulic condition on the downstream system but not higher than 73 bar gauge. In case the Natural Gas redelivered by Carrier is at a pressure which does not comply with paragraphs 1 and 2 of this Article 3.3, provided that Shipper has delivered at the Inlet Point Natural Gas in compliance with Article 3.1, Shipper shall be entitled to refuse the acceptance of such Natural Gas, provided the operator of the downstream gas transportation system refuses the acceptance of such Natural Gas; in case of such refusal by the Shipper, the Natural Gas shall be deemed as not redelivered by Carrier for all purposes of the transportation contract. General Terms and Conditions for Transportation of Natural Gas in WAG 8/24

9 In any case Carrier shall indemnify Shipper for all properly documented losses, damages and costs incurred by Shipper resulting from the delivery of Natural Gas not complying with the requirements of this Article. General Terms and Conditions for Transportation of Natural Gas in WAG 9/24

10 Article 4 Gas Quality 4.1 The Natural Gas delivered by Shipper for transportation via the WAG System shall at all times comply with the specifications of Appendix 1. Shipper and Carrier shall inform each other as soon as one of them becomes aware that natural gas physically delivered does not comply with said specifications (hereinafter called Off-Spec Gas ). 4.2 Carrier shall be entitled to refuse the transportation of Off-Spec Gas. Nevertheless, Carrier may at its sole discretion accept Off-Spec Gas. In any case Shipper shall indemnify Carrier from and against any and all direct and documented losses, liabilities and costs (including additional operational costs) incurred by Carrier resulting from such delivery of Off-Spec Gas. 4.3 In case Shipper delivers Off-Spec Gas at the Inlet Point and Carrier exercises the right to refuse the transportation of this Off-Spec Gas according to Article 4.2 Shipper shall be deemed not to have delivered any Gas at all - except for the Natural Gas which has already entered the WAG System. 4.4 On the condition that Shipper delivers Natural Gas at the Inlet Point as specified in the Appendix 1, Shipper shall be entitled to refuse to take over Off- Spec Gas at the Outlet point. In case Carrier delivers Off-Spec Gas at the Outlet Point and Shipper exercises the right to refuse to take over this Off- Spec Gas, Carrier shall be deemed not to have delivered any Gas at all. 4.5 Shipper accepts that its Natural Gas delivered for transportation under this transportation contract will be mixed with gas from other shippers. The Natural Gas redelivered by Carrier at the Outlet Point may not be identical to the Natural Gas delivered by Shipper to Carrier at the Inlet Point. In any case the Natural Gas delivered by Carrier at the Outlet Point as measured at the metering station shall comply with the specifications laid down in Appendix 1, provided that the Natural Gas delivered by Shipper at the Inlet Point complies with the specifications of Appendix 1. General Terms and Conditions for Transportation of Natural Gas in WAG 10/24

11 Article 5 Tariff 5.1 The tariff is determined in the transportation contract. Subject to the terms of the transportation contract, the tariff is subject to escalation as defined in the tariff policies of Carrier published on the Internet ( and contained in Appendix 3 of the General Terms and Conditions. Current tariffs and the transportation distance table are published on the Internet ( 5.2 The payment resulting from the application of this Article 5 is exclusive of any taxes, duties or levies of a similar nature. Carrier is entitled to add to the amount due by Shipper all taxes, duties or levies of similar nature imposed on Carrier by any authority with respect to providing the transportation services. General Terms and Conditions for Transportation of Natural Gas in WAG 11/24

12 Article 6 Invoicing and Payment 6.1 The tariff as laid down in Article 4 of the transportation contract shall be invoiced by Carrier on a monthly basis. The invoice shall be sent by Carrier to Shipper by fax not later than the 5 th working day of the Month in which the service is to be rendered. In case Carrier needs information from Shipper in order to establish the invoice, Shipper shall make this information available to Carrier within five (5) working days in Austria after being requested to do so by Carrier. 6.2 For each Month Shipper shall pay the relevant invoice in EUR free of any Shipper s bank charges on or before the 15 th Day of the Month in which the service is to be rendered (Due Date) to an account designated by Carrier in the relevant invoice. In case Carrier has not sent the relevant invoice by fax on or before the 5 th working day of a Month, the Due Date of payment shall be postponed by the same number of days as the invoice is delayed. 6.3 If the Due Date is not a banking day in Austria the payment shall be effected on the banking day in Austria immediately following the Due Date. 6.4 The applicable value added tax (VAT), if any, or any other future tax or fee caused by or payable in connection with the performance of the transportation contract shall be paid by Shipper in addition to the transportation tariff and shall be invoiced and paid in accordance with the rules under this Article. All invoices shall show VAT and other taxes or fees according to the preceding sentence. In case Shipper claims any statutory privilege for the transportation contract in question as regards VAT, Shipper shall inform Carrier accordingly prior to the conclusion of the transportation contract by written notice. 6.5 Interest on delayed payment shall be paid for the period starting from and including the Due Date for payment as defined above and ending on but excluding the value date of the payment, on the basis of an annual rate corresponding to the EURIBOR for 1 month as published by the European General Terms and Conditions for Transportation of Natural Gas in WAG 12/24

13 Central Bank on the Due Date plus 3.0 percentage points for payment as defined above. 6.6 If Shipper disputes an invoice, it shall justify its objections against the invoice but shall nevertheless pay Carrier the full amount of the invoice. If the relevant invoice turns out afterwards not to be correct, Shipper shall have the right, for such part of the invoice paid by Shipper which was not correctly invoiced, to charge daily interest for each day since payment was made on the basis of an annual rate corresponding to the EURIBOR for 1 month as published by European Central Bank on the date said part of the invoice is recalculated plus 3.0 percentage points. 6.7 Any invoice not disputed within three (3) months after the Due Date for payment shall be considered as final between the Parties. 6.8 Notwithstanding the provisions of 6.5 Carrier will give notice to Shipper if Shipper fails to make payment in due time. Shipper will be given an additional period of thirty (30) Days to make payment. If Shipper has not made payment within this period Carrier shall be entitled to terminate the transportation contract with immediate effect. In such case, Carrier shall be entitled to cover any outstanding payments due by Shipper with the advance payment to be made by Shipper pursuant to Article 7 after a ten (10) Days prior notice to Shipper. Carrier reserves the right to claim damages for all losses not covered by the advance payment. General Terms and Conditions for Transportation of Natural Gas in WAG 13/24

14 Article 7 Guarantee 7.1 As a guarantee for the payments to be made by Shipper Carrier requires Shipper to make an advance payment 7.2 This advance payment by Shipper shall be made prior to the commencement of Services to an account Carrier notifies of; otherwise Carrier shall be released from its obligation to provide Services. The advance payment shall be equivalent to the amount of payments to be made by Shipper to Carrier for Services for the two first Months of Service. In case of a one month contract, the advance payment shall be equal to the total amount to be paid by Shipper to the Carrier for Services. Within a period of fourteen (14) Days after the end of the term of the transportation contract the advance payment will be returned by Carrier to an account notified by Shipper. The advance payment shall carry interest on the basis of an annual rate corresponding to the EURIBOR for 1 month as published by European Central Bank on the date said advance payment is made minus 0.25 percentage points. General Terms and Conditions for Transportation of Natural Gas in WAG 14/24

15 Article 8 Liability 8.1 Each Party shall only be liable for the performance and fulfilment of the respective obligations under the transportation contract. 8.2 Carrier as well as its employees, servants, representatives and agents shall not be liable for any loss, damage or expense arising out of or in connection with the activities performed under the transportation contract, except such liability arises out of or results from gross negligence or wilful misconduct. 8.3 If Carrier is liable and such liability arises out of or results from gross negligence, the liability shall be limited to direct losses. Indirect losses, loss of profit and consequential damages shall be excluded in any case. 8.4 In any case the liability of Carrier shall be limited as follows: In case the transportation contract has a duration of more than one (1) year the liability of Carrier shall be limited to a maximum amount equal to the payment to be made in the Month in which the damage occurred multiplied by In case the transportation contract has a duration of less than one (1) year the liability of Carrier shall be limited to a maximum amount equal to the payment to be made in the Month in which the damage occurred multiplied by the number of Months which are covered by the transportation contract. General Terms and Conditions for Transportation of Natural Gas in WAG 15/24

16 Article 9 Warranty 9.1 Shipper warrants the title to all Natural Gas delivered by it or for its account at the Inlet Point to Carrier for transportation services hereunder, and that it is free from all liens, claims, taxes, assessments and encumbrances of any kind and nature. 9.2 Carrier hereby warrants that the Natural Gas redelivered to Shipper at the Outlet point shall be free from all liens, claims, taxes, assessments and encumbrances of any kind and nature. General Terms and Conditions for Transportation of Natural Gas in WAG 16/24

17 Article 10 Force Majeure 10.1 Force Majeure shall mean any event or circumstance or a combination of events and/or circumstances which affects the ability of Carrier to transport on the WAG System, the occurrence of which is unforeseeable and beyond the reasonable control of and could not have been avoided by steps which might reasonably be expected to have been taken by a Party exercising due diligence and prudence and which causes or results in a failure by such Party to perform or fulfil or its delay in performing or fulfilling a contractual obligation owed to the other Party. Shipper s inability to make payments for Services according to the transportation contract for whatever reason shall not constitute a case of Force Majeure Provided they fulfil the general requirement stated in 10.1, Force Majeure shall include but not be limited to any of the following events: (i) fire, flood, earthquake, landslide or other acts of God; war, riot, acts of public enemies or civil disturbances, terrorism; (ii) strike, lockout or other industrial disturbances; (iii) acts of governments, or compliance with such acts that directly affect the Parties ability to perform their obligations under the transportation contract Carrier shall notify Shipper immediately thereof and shall, without delay, provide the Shipper with details on the foreseeable duration and cause of the disruption Carrier affected by Force Majeure as defined above shall, without delay, take all technically and economically reasonable measures to restore the conditions for the performance of its obligations under of the transportation contract Carrier shall be released from the performance of its obligations under the transportation contract insofar and for as long as it is prevented from performing said obligations by an event or circumstance of Force Majeure. In such a case Shipper shall be released from its corresponding obligations to the same extent and duration thereof. If a case of Force Majeure lasts for more than six (6) Months the Parties shall come to an agreement as to how the transportation contract shall be adjusted. General Terms and Conditions for Transportation of Natural Gas in WAG 17/24

18 Article 11 Change in Essential Circumstances If the transportation contract has a duration exceeding one Year and if any essential economic, technical and/or legal condition under which the transportation contract is entered into and which is of essential significance to the transportation contract changes or if during the term of the transportation contract circumstances occur which at the date hereof neither could be foreseen nor would have to be taken into consideration and which would substantially affect the economic, technical and/or legal conditions of the transportation contract, the same shall be adjusted to the changed circumstances reasonably and in good faith preserving the economic interests of both Parties. The agreed adjustment shall be effective retroactively as of the date of the written notice of such change in essential circumstances which has to be given by registered mail from one Party to the other. General Terms and Conditions for Transportation of Natural Gas in WAG 18/24

19 Article 12 Ineffective Provisions If any of the provisions of the transportation contract is or becomes ineffective, inoperative or void, the effectiveness of the other provisions shall not be affected. The Parties undertake to replace the ineffective, inoperative or void provision by a new and effective operable provision which achieves an economic, technical and legal result as similar as possible to that of the ineffective, inoperative or void provision. General Terms and Conditions for Transportation of Natural Gas in WAG 19/24

20 Article 13 Assignment Shipper shall not have the right to assign its rights and obligations under the transportation contract and these General Terms and Conditions without the prior written consent of Carrier except the necessary rights and obligations according by law to AGGM in AGGM s role as Regelzonenführer Ost. Such consent by Carrier shall not be withheld in case Shipper assigns its rights and obligations under the transportation contract and these General Terms and Conditions to an affiliated company, which has control of the Shipper and owns directly at least 51% of the shares of Shipper or which is controlled by Shipper and of which Shipper owns directly at least 51% of the shares, and which has at least a similar financial standing as the assignor. In case of such assignment assignee s obligation to make an advance payment pursuant to Article 7 will be determined by Carrier. Furthermore assignor has to prove that the assignee has the technical capability to ensure the safe performance of the contractual obligation to be assigned. General Terms and Conditions for Transportation of Natural Gas in WAG 20/24

21 Article 14 Confidentiality The transportation contract and all information obtained thereunder or related to it, including all construction and operational data, shall be treated as confidential by the Parties. Such confidential information may be disclosed to advisors, contractors, banks or other financing entities and employees of the Parties only and exclusively to the extent required for the proper performance of the contractual obligations under the transportation contract. No Party shall be entitled to disclose confidential information to any other outside person without the prior written consent of the other Party, except when this is necessary for the performance of the contract or when required to do so by mandatory law or order of a competent governmental authority or within the context of arbitration under the transportation contract. For disclosures made to an outside person, appropriate safeguards shall be taken to prevent the outside person making any further disclosure of such information without the prior written consent of the Parties. Notwithstanding Article 8 both Parties shall be liable for any breach of this duty of Confidentiality by their personnel and hold the other Party entirely harmless therefore. General Terms and Conditions for Transportation of Natural Gas in WAG 21/24

22 Article 15 Miscellaneous 15.1 The transportation contract is, unless otherwise agreed upon in writing between the Parties, subject to these General Terms and Conditions which shall be deemed an integrated part of the transportation contract. However in case of any contradictions/discrepancies between these General Terms and Conditions and the terms of the transportation contract, the latter shall prevail. Shipper hereby acknowledges that in case Shipper itself is using general terms and conditions Carrier s General Terms and Conditions shall apply exclusively. Any performance of obligations under the transportation contract by Carrier shall not be deemed an acceptance of Shipper s general terms and conditions. Any remaining ambiguity shall be resolved between the Parties in a way which is in accordance with industry standard Carrier is entitled to amend the General Terms and Conditions from time to time provided Shipper is informed by letter about this. If Shipper does not object in writing against the application of amended General Terms and Conditions within two (2) Months after having been informed, the respective transportation contract will be subject to the General Terms and Conditions as amended, provided in case of a discrepancy between these new General Terms and Conditions and the terms of the transportation contract, the transportation contract shall prevail Amendments of and/or additions to the transportation contract except amendments according to Article 15.2 shall be effective only if made in writing and executed by both Parties. This is also true of a waiver for such requirement Any notice or demand permitted or required under the transportation contract shall be properly given or made if left at or dispatched by post or fax to the Party to whom it is addressed at the address as such Party has notified to the other Party in writing upon conclusion of the transportation contract. In case the address changes, this shall be notified to the other Party within fourteen (14) Days. If a notice or demand is given or made by post it shall be deemed to have been served ninety-six (96) hours after dispatch; if a written notice or General Terms and Conditions for Transportation of Natural Gas in WAG 22/24

23 demand is made by fax, it shall be deemed to have been served at the time it is dispatched, provided that it is confirmed by letter dispatched to the Party to whom the notice or demand was addressed within 24 (twenty-four) hours after the time of dispatch of the fax The transportation contract shall not constitute and not be construed as a precedent for any further contract whatsoever that may be concluded between Shipper and Carrier Carrier shall be entitled to discharge any of its obligations under the transportation contract and these General Terms and Conditions by procuring that such obligations are performed on its behalf by the Operator but in such case Carrier shall remain responsible to Shipper for the due performance of such obligations and for any failure or non-performance of the Operator Carrier s obligations concerning operation, nomination, dispatching and determination of quantity and quality shall be fulfilled by Operator on behalf of Carrier. General Terms and Conditions for Transportation of Natural Gas in WAG 23/24

24 Article 16 Applicable Law and Language 16.1 These General Terms and Conditions, the transportation contract, as well as all contracts necessary for its implementation, if any, shall be governed by and construed in accordance with the laws of Austria (excluding rules and regulations governing conflict of laws) The transportation contract is executed in the English language unless otherwise agreed by the Parties. General Terms and Conditions for Transportation of Natural Gas in WAG 24/24