Gas Supplier Agreement. between. the Distribution Company. and. the Gas Supplier

Transcription

1 Gas Supplier Agreement between the Distribution Company and the Gas Supplier (Version 2.0) Valid as from 6th June 2012 Non-binding translation

2 TABLE OF CONTENTS 1. PARTIES TO THE AGREEMENT PURPOSE DEFINITIONS PERIOD OF AGREEMENT TRANSFER FORCE MAJEURE TERMINATION CANCELLATION LIABILITY AND COMPENSATION General liability Liability in relation to the Consumer Register and the Register of Players Liability for Change of Supplier Liability for consumption data and the Market Share Value of the Gas Supplier Liability for gas quality AMENDMENT OF THE AGREEMENT CONFIDENTIALITY VENUE, JURISIDICTION AND LANGUAGE

3 1. PARTIES TO THE AGREEMENT This Gas Supplier Agreement has been entered into by the Distribution Company Name: [ ] Address: [ ] Postal code and city: [ ] Telephone: [ ] Fax: [ ] [ ] Company no.: [ ] GLN (player no.): [ ] Attn. function: [ ] and the Gas Supplier Name: Address: Postal code and city: Telephone: Fax: Company no.: GLN (player no.): Attn. function: 2. PURPOSE According to Rules for Gas Distribution, item 1, the Gas Supplier must among other things have entered a Gas Supplier Agreement with the relevant Distribution Company in order to qualify to supply natural gas in a Distribution Area. The Gas Supplier enters into such agreement by signing this Gas Supplier Agreement between the Distribution Company and the Gas Supplier. With his signature the Gas Supplier also sanctions the current version of the Rules for Gas Distribution as well as the rules and guidelines which are stated in item 1, paragraph b) of Rules for Gas Distribution. Furthermore, with his signature of the Gas Supplier Agreement, the Gas Supplier declares that he is familiar with the Rules for Gas Transport and the rules and guidelines relevant to the Gas Supplier as stated in item 1, paragraphs a), c), d) and e) of Rules for Gas Distribution. 3

4 3. DEFINITIONS Unless otherwise expressly stated in the Gas Supplier Agreement, words beginning with a capital letter which are defined in the Rules for Gas Distribution must have the same meaning in this Gas Supplier Agreement. 4. PERIOD OF AGREEMENT The Gas Supplier Agreement and Rules for Gas Distribution take effect when the parties sign the Gas Supplier Agreement, and they remain in force until the Gas Supplier Agreement is terminated or cancelled in accordance with the provisions of item 7 or 8. For parties who have previously signed the Consumer Handling Agreement or version 1.0 of the Gas Supplier Agreement, this version 2.0 of the Gas Supplier Agreement and Rules for Gas Distribution take effect as of 6th June 2012 and at the same time replace these. The Gas Supplier Agreement and Rules for Gas Distribution may be updated regularly and arbitrarily by the Distribution Company in accordance with item TRANSFER The Gas Supplier s rights and obligations in accordance with the Gas Supplier Agreement and Rules for Gas Distribution may only be transferred to a third party subject to the Distribution Company s acceptance. According to these provisions, demerger and merger constitute a transfer. The Distribution Company may transfer its rights and obligations in accordance with the Gas Sup-plier Agreement and Rules for Gas Distribution to a third party to which the Distribution Company s permission to perform distribution services is transferable in accordance with the Danish Natural Gas Supply Act. 6. FORCE MAJEURE Force majeure are events which a) occur after the Gas Supplier Agreement and the Rules for Gas Distribution take effect; b) are beyond the control of the affected party; c) could not reasonably be overcome by the affected party; and as provided that the affected party has shown the proper care required within the oil and gas industry. In case of force majeure, the obligations of the affected party in accordance with the Gas Supplier Agreement and Rules for Gas Distribution are suspended for as long as and to the extent to which the party is prevented from meeting its obligations. Using Other Communication, the affected party shall immediately notify the other party about the force majeure event and about when the force majeure event is expected to have been remedied. 4

5 The following are typical examples of force majeure: a) extraordinary forces of nature; b) anti-social acts; c) wars; d) fire; e) malicious damage; f) IT manipulation or other events causing an IT breakdown; g) breakdown or damage to machinery; h) impossibility of obtaining the necessary labour, machinery, materials or sub-suppliers; and i) labour market disputes, including but not limited to strikes and lockouts. Labour market disputes are regarded as being beyond the party s control regardless of whether the party in question is party to or cause of the dispute. Force majeure also occurs if, as a result of the force majeure event, the affected party can only meet its obligations by incurring an unreasonably large financial cost. Lack of money does not constitute a force majeure event. Finally, a party may claim force majeure if the Transmission System Operator declares force majeure in the Transmission System and this affects the obligations under this Gas Supplier Agreement and Rules for Gas Distribution of the party in question. 7. TERMINATION The Gas Supplier may terminate the Gas Supplier Agreement with a term of notice corresponding at least to the longest remaining period of agreement in the Gas Supplier s supply agreements with consumers within the Distribution Area (however, minimum two months), as of the first day of a month. However, the Gas Supplier Agreement cannot be terminated before all the Distribution Company's claims against the Gas Supplier under the Gas Supplier Agreement, Rules for Gas Distribution and adjacent agreements have expired, unless the Distribution Company accepts an early termination. During the notice period, the Gas Supplier can only be registered in the Consumer Register as Gas Supplier to new Metering Sites if the Gas Supplier's duty to supply the Metering Sites expires at the same time as the Gas Supplier Agreement at the latest. Item 7.7 of Rules for Gas Distribution applies if the Gas Supplier upon expiry of the Gas Supplier Agreement and despite the above continues to have supply agreements in force with consumers in the Distribution Areas. 5

6 8. CANCELLATION Each party is entitled to cancel the Gas Supplier Agreement in case of a material breach by the other party of its obligations as laid down in the Gas Supplier Agreement or Rules for Gas Distribution. Upon cancellation of the Gas Supplier Agreement, the Distribution Company is entitled to inform the Transmission System Operator that the Gas Supplier Agreement has been cancelled. Upon receipt of this notification, the Transmission System Operator records in the Register of Players that the Gas Supplier does not have a Gas Supplier Agreement with the Distribution Company. The recording in the Register of Players of the cancellation of the Gas Supplier Agreement means that the Gas Supplier s requests for Change of Supplier in the Distribution Areas will subsequently be rejected by the Distribution Company. In addition, the Metering Sites associated with the Consumer Portfolio of the Gas Suppliers in the Distribution Areas must be transferred and be supplied by a new Gas Supplier in accordance with item 7.7 of Rules for Gas Distribution. Examples of material breaches by the Gas Supplier are listed below (the list is, however, not exhaustive): a) if the Transmission System Operator cancels the Gas Supplier Framework Agreement with the effect that the Gas Supplier is denied registration in and access to the Register of Players; b) if the Gas Supplier is declared insolvent and the estate does not adopt the Gas Supplier Agreement or does not provide sufficient security within a deadline defined by the Distribution Company; c) if the Gas Supplier has failed to register and obtain approval of Player Relationships for all its Consumer Portfolios in the Distribution Area with an active status; d) if the Gas Supplier fails to comply with the requirements for documentation of the Consumers consent to Change of Supplier in accordance with item 9.3; and e) if the Gas Supplier repeatedly fails to observe the rules of Change of Supplier. In case of other material breaches than those mentioned in item 8, paragraphs a)-e), cancellation requires that the party wishing to cancel the Gas Supplier Agreement by Other Communication has requested that the breach be brought to an end and that the other party has not put an end to the breach within ten Business Days from receipt of the request. 9. LIABILITY AND COMPENSATION 9.1 General liability Unless otherwise stated in items , a party who does not fulfil its obligations under the Gas Supplier Agreement or Rules for Gas Distribution (the liable party) shall pay compensation for any and all substantiated direct loss incurred by the other party (the party seeking compensation) as a consequence of the other party s failure to fulfil its obligations. The liable party cannot be held li-able for loss of profit or other indirect loss suffered by the party seeking compensation, including recourse from joint contracting parties, unless the liable party acted with intent or gross negligence. 6

7 9.2 Liability in relation to the Consumer Register and the Register of Players The Distribution Company cannot be held liable for faulty information in the Register of Players or the Consumer Register, lack of access to information in the Register of Players or the Consumer Register, failure to update the Register of Players or the Consumer Register, failure to make backup of the Register of Players or faults in systems for operation of the Register of Players, unless the Distribution Company has acted with intent or gross negligence. It is not the responsibility of the Distribution Company to ensure that the Gas Supplier has registered the necessary Player Relationships in the Register of Players. The Gas Supplier guarantees that the Gas Supplier's collection and use of Base Data is in accordance with applicable legislation and shall indemnify the Distribution Company of any liability as a result of the Gas Supplier s failure to obtain the necessary authorisation from the Consumer to obtain such information including any liability for any fines or damages. 9.3 Liability for Change of Supplier A Gas Supplier who requests a Change of Supplier guarantees that the Change of Supplier takes place with the consent and acceptance of the Consumer and indemnifies the Distribution Company of any claim which the Consumer or a third party may make against the Distribution Company as a consequence of the Gas Supplier not having the necessary authorisation from the Consumer to make the Change of Supplier, including any liability for any fines or damages. The Gas Supplier must be able to present documentation hereof after the implementation of the Change of Supplier and shall hand over this documentation to the Distribution Company within five Business Days after being requested to do so by the Distribution Company. The Gas Supplier guarantees that the Gas Supplier s requests for termination of supply takes place in accordance with the Gas Supplier s agreement with the Consumer. The Gas Supplier must indemnify the Distribution Company of any claim which the Consumer or a third party may make against the Distribution Company as a consequence of the Gas Supplier s requests for termination of supply and consequential interruption of the supply. 9.4 Liability for consumption data and the Market Share Value of the Gas Supplier The Gas Supplier cannot make a claim against the Distribution Company as a consequence of faults or omissions in consumption data unless the fault or omission is a result of intentional acts or gross negligence by the Distribution Company. The Gas Supplier cannot make a claim against the Distribution Company as a consequence of faults in the Market Share Value of the Gas Supplier, unless the fault or omission is a result of intentional acts or gross negligence by the Distribution Company. 7

8 9.5 Liability for gas quality If the Gas Supplier or another party on behalf of the Gas Supplier supplies gas at the Transition Point which does not comply with the Quality Demands even if this is due to force majeure (except if the circumstances are war, malicious damage or extraordinary forces of nature), the Gas Supplier must indemnify the Distribution Company of the following: a) direct losses incurred by the Distribution Company; b) indirect losses incurred by the Distribution Company in the form of claims which Consumers or third parties can make against the Distribution Company; and c) other indirect losses incurred by the Distribution Company, including loss of profit, if the Gas Supplier acted intentionally or with gross negligence. If a supply of gas that fails to comply with the Quality Demands at the Transition Point cannot be attributed to one or more specific Gas Suppliers, all Gas Suppliers that delivered gas at the mentioned Transition Point at the time in question are liable to indemnify the Distribution Company of the abovementioned claims on a pro rata basis in proportion to the amount of gas delivered in accordance with item in Rules for Gas Distribution. As regards the indirect losses of the Distribution Company as a consequence of claims made by Consumers, only the Gas Supplier who sup-plied gas to the Consumers in question at the time stated is liable to indemnify the Distribution Company. If Consumers, despite the fact that the gas supplied at the Transition Point meets the Quality Demands, can make claims against the Distribution Company in connection with the quality of the supplied gas, including claims based on general principles of law or rules pertaining to product li-ability, the Gas Supplier and the remaining Gas Suppliers shall indemnify the Distribution Company in accordance with the provisions of item of Rules for Gas Distribution and the above provisions on the Gas Supplier s liability for supply of gas that does not comply with the Quality Demands at the Transition Points. 10. AMENDMENT OF THE AGREEMENT The Gas Supplier Agreement and Rules for Gas Distribution may be amended arbitrarily by the Distribution Company if the amendment is necessary in order for the Gas Supplier Agreement and Rules for Gas Distribution to be in accordance with the Gas Supplier Agreement and Rules for Gas Distribution applicable from time to time as reported to the authorities. The Distribution Company shall inform the Gas Supplier of amendments to the Gas Supplier Agreement and Rules for Gas Distribution with at least one month's notice to the first day of a month. The amendments will take effect upon expiry of the notice period. 11. CONFIDENTIALITY The Distribution Company shall respect the Gas Supplier Agreement, and information about the Gas Supplier received in connection with this agreement is confidential, unless otherwise stated in the Gas Supplier Agreement, Rules for Gas Distribution, the legislation applicable from time to time or rules and guidelines appearing from item 1 of Rules for Gas Distribution. 8

9 12. VENUE, JURISIDICTION AND LANGUAGE Any dispute between the parties arising from the interpretation or breach of the Gas Supplier Agreement or Rules for Gas Distribution, including any claim made by virtue of the agreement must be sought resolved by negotiation. If the parties are unable to resolve the dispute by negotiation within 20 Business Days from the time when a request for negotiation was made, the dispute must be settled by the home court of the Distribution Company as laid down in the Danish Administration of Justice Act, unless the dispute falls under the jurisdiction of a public authority. The Gas Supplier Agreement and Rules for Gas Distribution are subject to Danish law. The Gas Supplier Agreement and Rules for Gas Distribution are made in a Danish and an English version. If any discrepancy between the wording of the two versions should occur, the Danish version must prevail. -ooo0ooo- Signed in two identical copies: Date: Place: The Distribution Company Date: Place: The Gas Supplier 9