DISTRIBUTION USE OF SYSTEM AGREEMENT

Transcription

1 DATED <<DATE>> ELECTRICITY SUPPLY BOARD and «NAME» DISTRIBUTION USE OF SYSTEM AGREEMENT FRAMEWORK AGREEMENT Approved by CER on 1 st August 2002

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3 Distribution Use of System Agreement ESB 06/08/02 TABLE OF CONTENTS 1. DEFINITIONS AND INTERPRETATION CONDITIONS PRECEDENT REPRESENTATIONS AND WARRANTIES USE OF SYSTEM CALCULATION AND PAYM ENT OF CHARGES BILLING AND PAYMENT SECURITY COVER LIMITATION OF LIABILITY ENERGISATION, DE-ENERGISATION AND DISCONNECTION DISTRIBUTION CODE METERING DATA AND METERING EQUIPMENT PROVISION OF INFORMATION VARIATIONS TERM AND TERMINATION FORCE MAJEURE CONFIDENTIALITY DISPUTE RESOLUTION MISCELLANEOUS ASSIGNMENT AND SUB-CONTRACTING GOVERNING LAW AND JURISDICTION SCHEDULE 1: ADDITIONAL SERVICES SCHEDULE 2: BILLING AND PAYMENT DISPUTES SCHEDULE3: CONDITIONS FOR CONNECTION TO THE DISTRIBUTION SYSTEM SCHEDULE 4: ADDRESSES... 53

4 Distribution Use of System Agreement ESB 01/08/02 AGREEMENT is made the <<Day> day of <<Month>> BETWEEN: (1) ELECTRICITY SUPPLY BOARD, a statutory corporation having its principle office at 27 Lower Fitzwilliam Street, Dublin 2 (hereinafter called the Company"); (2) «Registered_Name», «Reg_Address1», «Reg_Address2», «Reg_Address3» (hereinafter called the User ) and each of the parties hereto being a "Party" and the term "Parties" shall be construed accordingly. WHEREAS: (A) The User has applied to the Company for use of the Distribution System as a person licensed under Section 14 of the Electricity Regulation Act, 1999 in order to supply electricity to the categories of customers described in that section. (B) In accordance with Section 34 of the Electricity Regulation Act, 1999 the Company is required, subject to certain exceptions, to enter into an agreement for use of the Distribution System. (C) This Agreement set out the terms and conditions upon which the Company and the User have agreed in relation to the use by the User of the Distribution System. (D) This Agreement relates to the supply of electricity to one or more persons connected to the Distribution System the connection of those persons being pursuant to a relevant Connection Agreement. THE PARTIES AGREE as follows: 1. DEFINITIONS AND INTERPRETATION 1.1 In this Agreement except where the context otherwise requires the following expressions shall have the meanings set out opposite them: "Act" Means the Electricity Regulation Act, 1999; Additional Services Means the services listed in Schedule 1 hereto Affiliate Means in relation to either Party, any holding company or subsidiary or any subsidiary of a holding company of the relevant Party, in Revision 1 August 2002, Page 2 of 55

5 Distribution Use of System Agreement ESB 06/08/02 each case within the meaning of the Companies Acts, 1963 to 1999 inclusive; "Approved Credit Rating" Means a long-term debt rating of not less than A1 by Standard and Poor s Corporation or a rating of not less than P1 by Moodys Investors Services or an equivalent rating from any other reputable credit rating agency approved by the Company from time to time. Business Day Means any day other than a Saturday, a Sunday or a public holiday in Ireland; Confidential Information Has the meaning given in Clause 16; Charging Period Means the period specified in Schedule 2 or, as appropriate, or if no period is specified, a period of one calendar month; Commission Means the Commission for Electricity Regulation established by the Act; "Connection Agreement" Means an agreement between the Company and any Customer which provides that the Customer has the right for that Customer's Installation to be and remain connected to the Distribution System; Connection Point Competent Authority Means the physical point at which the facility is joined to the Distribution System; Means the Commission or any local, national or supra-national agency, authority, department, inspectorate, minister, official, court, tribunal or public or statutory person (whether autonomous or not) of Ireland (or the government thereof) or the European Union which has jurisdiction over a Party or the subject matter of the Agreement. "Customer" Means a final customer as defined in the Act to whom the User proposes to supply or for the time being supplies electricity through an Exit Point; Revision 1 August 2002, Page 3 of 55

6 Distribution Use of System Agreement ESB 01/08/02 "Customer's Installation" Means any structures, equipment, lines appliances or devices used or to be used by any Customer and connected or to be connected directly or indirectly to the Distribution System; Data Aggregator Has the meaning given to it in the Trading and Settlement Code; "De-energise" Means in relation to any Metering Point, deliberately to prevent the flow of electricity from the Distribution System through the relevant Exit Point (or, in the case of an Unmetered Supply, any one or more of the relevant Exit Points) to the relevant Customer s Installation for any purpose other than a System Outage, and De- Energisation and De-Energising shall be construed accordingly; "De-energisation Works" Means the movement of any switch, the removal of any fuse or meter, or the taking of any other step to De-energise an Exit point; Designated Dispute "Directive" Has the meaning given to it in Section 1.2 of Schedule 2 ; Means any present or future legislation, statutory instrument, directive, requirement, instruction, order, direction or rule of any Competent Authority binding on either or both of the Company and the User (but only, if not having the force of law, if compliance with the Directive is in accordance with the general practice of persons to whom the Directive is addressed) and includes any modification, extension or replacement thereof then in force; Revision 1 August 2002, Page 4 of 55

7 Distribution Use of System Agreement ESB 06/08/02 "Disconnection Notice" Means a notice sent by the User to the Company pursuant to Clause 9 and which identifies the Metering Point to which the notice relates by reference to the Meter Reference Number for that Metering Point and requests the Company to De-register the Metering Point; Disconnect" Means in relating to an Exit Point, to change the status of the Meter Point Reference Number relating to that Exit Point so as to prevent any further registration in respect of that Meter Point Reference Number; "Distribution Code" "Distribution System" Means the Distribution Code required to be prepared by the Company pursuant to Section 33 of the Act, and approved by the Commission, as from time to time revised, amended, supplemented or replaced with the approval of or at the instance of the Commission; Means the Company's Distribution System that is to say, a system which consists of electric lines, electric plant, transformers and switchgear and which is used for conveying electricity to final customers; Distribution System Operator Means the Company acting as operator of the Distribution System; Eligible Customer Has the meaning given to it under the Act; Revision 1 August 2002, Page 5 of 55

8 Distribution Use of System Agreement ESB 01/08/02 Encumbrance Means any pledge, mortgage, lien, assignment by way of security, charge, hypothecation, security interest, title relation or any other security agreement or arrangement having the effect of conferring security, or other form of encumbrance and Encumber and like terms shall be construed accordingly; Energise Means, in relation to any Exit Point, deliberately to allow the flow of electricity from the Distribution System through the relevant Exit Point to the relevant Customer's Installation where such a flow of electricity was disabled or non-existent; "Energisation Works" ESB Safety Rules Euribor Means the movement of any isolator, breaker or switch, or the insertion of any fuse so as to enable active power and reactive power to be transferred to and from the Customer s Installation through an Exit Point; Means the documents prepared by the Company entitled Electricity Supply Board Ireland, Safety Rules (Electrical) (Transmission, Distribution and Marketing) and Electricity Supply Board Ireland, Safety Rules (Electrical)(Generating Stations) ; Means in relation to any sum, the rate per annum for deposits in euro for the specified period applicable thereto which appears on Telerate (or any successor service) page 248 (or any relevant successor page) or Reuter s page Euribor (or any successor or service page) at or about 11am on the relevant rate fixing date. If no such quotation is available, EURIBOR will be the rate per annum for deposits in euro determined to be equal to the arithmetic mean (rounded upwards to four decimal places) of the six month rates at which at least three banks who generally provided quotes on Telerate page 248 when quotations were last available thereon was offering to prime banks in the European Interbank Market deposits in euro and for the specified period at or about 11:00 am on the relevant rate fixing day. For the purposes of Revision 1 August 2002, Page 6 of 55

9 Distribution Use of System Agreement ESB 06/08/02 this definition specified period means the period in respect of which EURIBOR falls to be determined in relation to such sum; euro or EUR Means the single currency of participating Member States of the European Union; Event of Default Has the meaning given to it in Clause 14.4; "Exit Point" "Force Majeure" Means a Connection Point at which a supply of electricity may flow between the Distribution System and the Customer's Installation; Means any one of the events, conditions or happenings as set out in Clause 15; "Good Industry Practice" Means the exercise of that degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced operator engaged in the same type of undertaking under the same or similar circumstances; "kva" Means kilovoltamperes; Legal Claim Has the meaning given to it in Clause 8.2.2; Letter of Credit Means an irrevocable standby letter of credit in such form as the Company may reasonably approve issued for the account of the User in favour of the Company, allowing for partial drawings and providing for the payment to the Company forthwith on demand by any bank which meets the following criteria: (a) banks with a long-term credit rating of at least AA (Standard and Poor) or AA2 (Moody s) or equivalent. AA minus will not suffice, or (b) holders of banking licences issued under Section 9 of the Central Bank Act 1971, with total balance sheets assets of not less than EUR 1,270 million equivalent or whose parent bank, where such a holder is a branch or subsidiary, has total balance sheet assets of not less than Revision 1 August 2002, Page 7 of 55

10 Distribution Use of System Agreement ESB 01/08/02 EUR 12,700 million equivalent and a rating not less than A/A2, or (c) subsidiaries of branches of international banks, operating in Ireland, provided that the parent bank meets the criteria at (a) or has total balance sheet assets of not less than EUR 12,700 million or equivalent and a credit rating of at least A/A2; "Maximum Import Capacity" Means the amount of electricity referred to as being the "Maximum Import Capacity" in relation to each Connection Agreement to which this Agreement relates; Metering Code Means the code of that name which specifies the minimum technical design and operational criteria to be complied with for metering and data collection equipment and associated procedures as required under the Trading and Settlement Code; Metering Equipment Has the meaning given to it in the Metering Code; "Metering Point Has the meaning given to the term Actual Metering Point in the Metering Code; Meter Point Reference Number Means the number which uniquely identifies User's Metering Equipment and which is registered under the Meter Registration System as further provided in the Trading and Settlement Code; Meter Registration System or (MRS) Meter Registration System Operator or MRSO Means the system and/or process which uniquely identifies Metering Equipment and users associated with the meter and which contains pertinent data relating to the Meter as required by the Trading and Settlement Code; Means the Company carrying out the activities of meter registration system operation as further provided in the Trading and Settlement Code; Revision 1 August 2002, Page 8 of 55

11 Distribution Use of System Agreement ESB 06/08/02 Party Means, as the context requires, the User or the Company and the term Parties shall be construed accordingly; Party Liable Has the meaning given to it in Clause 8.2; Party Not Liable Has the meaning given to it in Clause 8.2; "Registration Notice" Means a notice sent to the MRSO by either the User or the Company, as the case may be, instructing the MRSO to change the status of a Metering Point in the manner set out in the notice and De-Registration Notice shall be construed accordingly; "Security Cover" Means the security cover (if any) provided to the Company by the User under Clause 7; "Settlement" Has the meaning given to that term in the Trading and Settlement Code; "Supply Contract Means a contract (whether oral or in writing) between the User and a Customer for a supply of electricity to such Customer through an Exit Point from time to time; Supply Licence Means a licence for the supply of electricity under Section 14(1)(b), (c) or (d) and 14(2) of the Act; Term Has the meaning given to it in Clause 14.1; Trading and Settlement Code "Transactional Charges" Means the code and agreement of that name which sets out the rules for trading in electricity and settling energy imbalances and the responsibilities of parties thereto. Means the total monthly charges payable by the Supplier for all the Additional Services listed in Schedule 1. The charges in respect of each of the Additional Services in Schedule 1 are determined annually and published by the Commission. ; Revision 1 August 2002, Page 9 of 55

12 Distribution Use of System Agreement ESB 01/08/02 "Unit" Means kilowatt hour; "Use of Distribution System" "Use of System Charges" Means the use of the Distribution System for the passing of electricity into the Distribution System and for the transportation of such electricity by the Company through the Distribution System to Exit Points; Has the meaning given to that term in Clause 5.1; Value Added Tax or VAT Means the Value Added Tax chargeable under the provision of the Value Added Tax Act 1972 or any tax on the supply of goods or services which may hereafter replace or supplement Value Added Tax. Revision 1 August 2002, Page 10 of 55

13 Distribution Use of System Agreement ESB 06/08/ In this Agreement, unless the context requires otherwise, any reference to: the singular shall include the plural and vice versa; any gender reference shall be deemed to include references to the masculine, feminine and neuter genders; the word including and its variations shall be constructed without limitation; the Agreement" shall mean this agreement and its Schedules and Appendices; any reference to writing or written shall include all methods of reproducing words in a legible and non-transitory form; any words importing persons or parties shall include individuals, firms and corporations, joint ventures, trusts, unincorporated associations and organisations, partnerships and any other entity, in each case whether or not having a separate legal personality and any references to persons shall include their legal successors and permitted assignees; any reference to legislation, regulations, Directives, orders, instruments, codes or other enactments shall include any amendments, modifications extensions, replacements or re-enactments thereof then in force; unless otherwise specified: (a) (b) (c) (d) any reference in the Agreement to a Clause is a reference to a Clause contained in the Agreement; any reference to a Schedule is a reference to a Schedule to the Agreement; any reference to an Appendix is a reference to an Appendix to the Agreement; and any reference to a Section is a reference to a Section to a Schedule to the Agreement; any reference to another agreement or document, or any deed or instrument, (including the Distribution Code, the Metering Code, the Trading and Settlement Code or the ESB Safety Rules) shall be constructed as a reference to that other agreement, or document, deed or other instrument as the same may have been, or may from the time be, amended, varied, supplemented, substituted or novated; any terms which are defined in the Act, the Distribution Code, the Metering Code or the Trading and Settlement Code and which are not otherwise defined in the Agreement shall have the meanings ascribed to them in the relevant Code or the Act; Revision 1 August 2002, Page 11 of 55

14 Distribution Use of System Agreement ESB 01/08/ any terms not defined in either the Agreement, the Distribution Code the Metering Code or the Trading and Settlement Code shall have the meaning commonly used in electric utility practice or the English language, as appropriate; any reference to a month or year shall be construed as reference to a calendar month or year, as the case may be; where reference is made to an amount or sum, it is to an amount or sum denominated in euro ; the table of contents and Clause headings are inserted for ease of reference only and shall be ignored for the purpose of the construction of the Agreement; all terms which have been defined in the Agreement shall have their initial letters in capital typescript whenever and wherever they appear in the Agreement; in the event of inconsistency between the provisions of the Agreement and the Distribution Code, the Metering Code or the Trading and Settlement Code (as the case may be), the provisions of the Distribution Code, the Metering Code or the Trading and Settlement Code (as the case may be) shall prevail to the extent of such inconsistency unless the contrary intention is explicit. In the event of inconsistency between the Agreement and any other agreement between the parties relating to connection to the Distribution System, the Agreement shall prevail to the extent of such inconsistency unless the contrary intention is explicit. 2. CONDITIONS PRECEDENT 2.1 The provisions of Clauses 4.1, 5, 6, 9, 13 and 20 of this Agreement are conditional upon each of the following conditions precedent being fulfilled (or waived by the Company, acting reasonably): the User holding a Supply Licence; the User being a party to a Transmission Use of System Agreement; the User having provided all the information and documentation required in accordance with the Agreement in relation to its Customers, such information to include, without limitation, a list of its customers to be covered by this Agreement (whether contractually bound or anticipated at the date of the list) and information required pursuant to Clause 12; the User being a party to the Trading and Settlement Code; Revision 1 August 2002, Page 12 of 55

15 Distribution Use of System Agreement ESB 06/08/ where the User does not hold an Approved Credit Rating, provision by the User of the Security Cover required by the Company in accordance with Clause If the conditions precedent in Clause 2.1 are not fulfilled at the date of the Agreement, the User shall procure the fulfilment of those conditions which have not already been fulfilled as soon as practicable. 2.3 Where the conditions precedent in Clause 2.1 have been met the User shall notify the Company in writing. The Company shall notify the User in writing of any conditions precedent in Clause 2.1 that have been waived. 2.4 Once the conditions precedent in Clause 2.1 have been fulfilled (in whole or in part), the User shall keep such conditions fulfilled throughout the Term. 2.5 Subject as otherwise provided in this Agreement, if any of the conditions precedent set out in Clause 2.1 has not been fulfilled or waived within three (3) months of the execution of this Agreement or is no longer fulfilled then, subject to any accrued rights and obligations of either Party the Company may terminate the Agreement by written notice to the User and the Agreement shall terminate on the date specified in the notice. The User shall immediately pay to the Company any amount due by the User to the Company as calculated in accordance with Clause REPRESENTATIONS AND WARRANTIES 3.1 The User represents and warrants to the Company in respect of subclauses and on an on-going basis throughout the Term that: the User has full power and authority to enter into and perform this Agreement and the execution and performance of this Agreement will not conflict with or constitute a breach or default under any contract or agreement of any kind to which the User is a party or any judgement, order, statute or regulation which is applicable to the User; and no representation or warranty made by or on behalf of the User and contained in this Agreement and no statement contained in any submission to the Company, declaration or other instrument made or to be made by or on behalf of the User in connection with this Agreement contains or will contain any false or misleading representation of a material fact, or omits or will omit to state a material fact necessary to prevent such statements, in the light of the circumstances under which they are to be made, from being misleading. 3.2 The Company represents and warrants to the User as at the date of this Agreement that the Company has full power and authority to enter into and perform this Agreement and the execution and performance of Revision 1 August 2002, Page 13 of 55

16 Distribution Use of System Agreement ESB 01/08/02 this Agreement will not conflict with or constitute a breach or default under any contract or agreement of any kind to which the Company is a party or any judgement, order, statute or regulation which is applicable to the Company. 3.3 The Company shall endeavour to procure a Connection Agreement for all Customers with a Maximum Import Capacity greater than l00kva. The User shall advise the Company of any Customer it proposes to register with a Maximum Import Capacity likely to exceed l00kva so that the Company may procure a Connection Agreement prior to registration. 3.4 Where the Customer is not an Eligible Customer the Company hereby appoints the User as its agent for the purpose of procuring Connection Agreements with the Customer and the User agrees to act in that capacity. The User shall: not pledge the credit of the Company in any way; not make or give any representation or warranty in relation to the Company unless the representation or warranty itself has been expressly approved in writing by the Company; not agree or purport to agree to any obligations on the Company other than those in the standard Connection Agreement; and not agree or purport to agree any variation to any standard Connection Agreement. 3.5 For the purpose of fulfilling Clause 3.4 the User shall procure that on each occasion on which it enters into a Supply Contract (whether written or oral) that there is included in that Supply Contract the terms set out in Schedule 3 or other terms having the same effect as those terms and that such terms are drawn to the attention of the relevant Customer before the Supply Contract is entered into. 3.6 The user shall indemnify the company against all action, proceedings, costs, demands, claims, expenses, liability, loss or damage arising from, or incurred by the company as a consequence of the user failing to comply with clause USE OF SYSTEM 4.1 Maximum Import Capacity: in relation to each Exit Point, the Company will confirm the Maximum Import Capacity for that Exit Point; and the Company will update such confirmation or notification as soon as practicable after it becomes aware of any change and advise the User of any such change. Revision 1 August 2002, Page 14 of 55

17 Distribution Use of System Agreement ESB 06/08/ Subject to the terms of this Agreement, the Company shall transport electricity through the Distribution System to each Exit Point relating to a Metering Point or Metering Points registered to the User under the Meter Registration System up to the Maximum Import Capacity and subject to such variations (if any) as may be agreed between the Parties. 4.3 The obligation of the Company to transport electricity to a particular Exit Point pursuant to Clause 4.2 is in each case subject to the following conditions precedent being fulfilled (or waived by the Company, acting reasonably); the User being authorised by its Supply Licence to supply electricity to each of the premises to be supplied with electricity through such Exit Point; in relation to Customers connected to the Distribution System, the User s Customers being party to a Connection Agreement with the Company under which the right to connect and energise has arisen (subject only to the entering into of this Agreement) and continues in full force and effect; the User being validly registered in MRS in respect of each Metering Point relating to Customers to be supplied by the User; and there being in place metering equipment which complies with the requirements of the Metering Code if applicable or, if the Metering Code is not applicable the User having satisfied the Company, acting reasonably, that adequate metering, data transferral system and relevant registrations are in place for each Exit Point. 4.4 The Company shall provide, and the User shall be entitled to receive, Use of Distribution System only insofar as it relates to: supplies of electricity to premises of Eligible Customers; supplies of electricity to premises permitted pursuant to Sub Sections 14(1)(c) and (d) of the Act. 4.5 Insofar as any condition set out in Clause 4.3 subsequently ceases to be fulfilled in relation to any Customer, the provisions of this Agreement shall continue but the aggregate Maximum Import Capacity shall be reduced by an amount equal to the Maximum Import Capacity of that Customer. If there are no Customers complying with any of the requirements set out in Clause 4.3, the provisions of Clause 14 shall apply and this Agreement shall terminate. 4.6 If the conditions in Clause 4.3 are not fulfilled at the date of the Agreement, the User shall procure the fulfilment of those conditions which have not already been fulfilled as soon as practicable. 4.7 Where the conditions in Clause 4.3 have been met, the User shall notify the Company in writing. The Company shall notify the User in writing of any conditions in Clause 4.3 that have been waived. Revision 1 August 2002, Page 15 of 55

18 Distribution Use of System Agreement ESB 01/08/ Once the conditions in Clause 4.3 have been fulfilled (in whole or in part), the User shall keep such conditions fulfilled throughout the Term. 4.9 Subject as otherwise provided in this Agreement, if any of the conditions set out in Clause 4.3 has not been fulfilled or waived within three (3) months of the execution of this Agreement or is no longer fulfilled, then subject to any accrued rights and obligations of either Party the Company may terminate the Agreement in relation to the Exit Point in question by written notice to the User and the Agreement shall be deemed amended on the date specified in the notice to remove the right to Use of Distribution System in relation to that Exit Point. The User shall immediately pay to the Company any amounts due by the User to the Company as calculated in accordance with Clause CALCULATION AND PAYMENT OF CHARGES 5.1 The User shall pay to the Company in respect of Use of the Distribution System the charges calculated from the Statement of Charges prepared by the Company ( Use of System Charges ) and approved by the Commission pursuant to Section 35 of the Act subject to annual review and published on the Commission website (currently available at In addition to the charges provided for in Clause 5.1, the User shall pay to the Company: the Transactional Charges ; charges for certain services provided by the Company to the User pursuant to any agreements between the Parties for additional metering or data collection services as identified in each such agreement as being recoverable by the Company as an element of the charges which it levies on the User under this Agreement; and charges arising pursuant to the introduction of a levy or order under Section 39 of the Act as amended and varied and referred to in Sub- Clause ( the levy order ) and calculable in accordance with a formula to be approved by the Commission from time to time 5.3 The Company may, vary: the Transactional Charges where the Commission varies the charges for the Additional Services; the charges for certain services provided by the Company to the User pursuant to the other agreements between the Parties described in Clause in accordance with those agreements; and Use of System Charges where the Commission approves a variation in the statement of charges pursuant to Clause 5.1;and the levy order made pursuant to Clause where the Commission approves a variation to the levy order. Revision 1 August 2002, Page 16 of 55

19 Distribution Use of System Agreement ESB 06/08/ The Company shall invoice the Use of System Charges payable by the User using data obtained pursuant to the relevant Connection Agreements and in accordance with the Trading and Settlement Code, or in the absence of such data, using such other data as is available to it. 5.5 All amounts payable by the User under this Agreement, whether Use of System Charges, interest or otherwise: are exclusive of any applicable Value Added Tax (or other similar tax), sales tax or other lawful taxes or levies applicable by reason of the performance of the Agreement and the Parties agree that an amount equal to any applicable Value Added Tax (or other similar tax), sales tax or other lawful taxes or levies lawfully chargeable in respect of the performance of the Agreement shall be payable or repayable, as the case may be, in addition to, at the same time and in the same manner as the amounts to which it relates; and except to the extent required by law or as expressly permitted by Schedule2shall be paid in full, free and clear of and without any deduction, set-off or deferment whatsoever. 5.6 The Company may charge the User Use of System Charges calculated by reference to electricity discovered or reasonably and properly assessed to have been consumed by a Customer while a Customer of the User but not recorded at the time of consumption (for whatever reason) by the Metering Equipment installed pursuant to Clause 11. At any time when the Company charges the User Use of System Charges under this Clause 5, it shall include details for the User of the calculation of those charges and the basis of that calculation. 6. BILLING AND PAYMENT 6.1 As soon as is reasonably practicable after the end of each Charging Period, the Company shall submit to the User an account specifying the Use of System Charges and other charges payable for that Charging Period. The Company shall provide to the User such reasonable information as may be required to enable the User to verify those use of System Charges. Such account shall be based on: data from Metering Equipment or where actual data is not available, estimated data prepared in accordance with methods of estimation established under the Trading and Settlement Code and/or in the absence of such provisions under such code, as reasonably estimated by the Company; and other data as specified in the relevant Connection Agreement. Where an account is based on estimated data, the account shall be subject to any adjustment which may be necessary following the receipt of actual data. Revision 1 August 2002, Page 17 of 55

20 Distribution Use of System Agreement ESB 01/08/ Within ten (10) Business Days of the date of an account submitted in accordance with Clause 6.1 or within ten (10) Business Days after the end on the Charging Period whichever is the later, the User shall pay to the Company all sums due in respect of such account by electronic transfer of funds to such bank account as is specified in the account, quoting the account number against which payment is made and/or such other details as the Company may reasonably require. Where the sum is less than EUR 1,300 payment may be made by cheque. Subject to Clause 6.3, if any amount remains unpaid after the due date thereof, the Company shall (in addition to any other remedies) be entitled to charge interest on the amount unpaid, including interest on any Value Added Tax unpaid, at the rate of 2% per annum above EURIBOR, compounded annually. 6.3 Where any sum included in an account submitted in accordance with Clause 6.1 is disputed by the User the provisions of Schedule 2 shall apply. 7. SECURITY COVER 7.1 Meeting of Security Requirements The User must as soon as reasonably practicable after (and in any event within ten (10) Business Days) of execution of this Agreement meet the security requirements by one of the methods in Clause 7.2. If the User does not comply with this Clause 7, the Company may in its discretion, acting reasonably, by notice to the User given at any time terminate this Agreement with effect from the date specified in the notice. 7.2 Means of Meeting the Security Requirements The security requirements must be met by one of the following means: Proof that the User has an Approved Credit Rating Letter of Credit Escrow Account A cash deposit in an interest bearing deposit account in the joint names of the Company and the User at a bank that satisfies the criteria as outlined under the definition of Letter of Credit ( an Escrow Account ). Interest on the Escrow Account will accrue for the benefit of the User, after deduction of any bank charges or tax Other Guarantee ESB may at its sole discretion accept an alternative form of security. Revision 1 August 2002, Page 18 of 55

21 Distribution Use of System Agreement ESB 06/08/ Security Cover Amount The Company shall determine the amount of Security Cover required, based on an estimate of the User s Use of System Charges, inclusive of applicable taxes, over a two (2) month period. This estimate will be based on the generation capacity available to the User. 7.4 Revision of Security Cover Amount Where at the end of any month the amount invoiced to the User and unpaid, including any amount in dispute, exceeds the existing amount of Security Cover by 10% or more, the Company shall notify the User of the recalculated amount of Security Cover in writing, whereupon the User shall forthwith procure that the Company receives the necessary additional Security Cover within ten (10) Business Days. 7.5 Change in Credit Rating If the User has an Approved Credit Rating, it must immediately notify the Company if it is placed on credit watch or its credit rating changes, giving details of its revised credit rating or status. If at any time the User s credit rating ceases to be an Approved Credit Rating, the User must within ten (10) Business Days of its so ceasing provide the Security Cover referred to in this Clause If the bank issuing the User s Letter of Letter of Credit ceases to have the credit rating set out in the definition of Letter of Credit such User shall forthwith procure the issue of a substitute Letter of Credit by a bank that has such a credit rating or procure the issue of a Qualifying Guarantee or place cash in the Escrow Account If the User s Qualifying Guarantee is provided by an entity and that entity ceases to have an Approved Credit Rating, the User shall forthwith procure a replacement Qualifying Guarantee from an entity with such a credit rating or a Letter of Credit or place cash in the Escrow Account. If the User s Qualifying Guarantee is not provided by an entity and the basis on which the guarantee was accepted by the Company changes, the User shall forthwith notify the Company and if required by the Company at the Company s sole discretion, procure a replacement Qualifying Guarantee from an entity with an Approved Credit Rating or a Letter of Credit or place cash in the Escrow Account. 7.6 Return of Security Cover Security Cover (and in the case of cash deposit, any interest accrued in respect of the cash deposit, less any bank and similar charges and any Revision 1 August 2002, Page 19 of 55

22 Distribution Use of System Agreement ESB 01/08/02 taxes deducted by the bank) will be returned to the User and guarantees discharged within ten (10) Business Days of termination of this Agreement only if the User has paid all amounts owing by it in respect of this Agreement. Return of Security Cover is without prejudice to the rights of the Company under this Agreement and does not relieve the User of any of its obligations or any liability in respect of this Agreement. 8. LIMITATION OF LIABILITY 8.1 To the extent provided in this Clause 8, neither Party shall be liable for any breach of the Agreement directly or indirectly caused by Force Majeure. 8.2 Except as provided in this Clause 8.2 and Clause 8.3 to 8.5 and except where any other provision of the Agreement provides for an indemnity, neither Party ("Party Liable") nor any of its officers, employees or agents shall be liable to the other Party ("Party Not Liable") for any losses, damages, claims, liabilities, costs or expenses arising from any breach of the Agreement other than for losses, damages, claims, liabilities, costs or expenses directly resulting from such breach and which at the date hereof were reasonably foreseeable as not unlikely to occur in the ordinary course of events from such breach in respect of: physical damage being occasioned to the property of the Party Not Liable, its officers, employees or agents; or the liability of the Party Not Liable to any other person for loss in respect of physical damage caused directly to the property of such other person as a result of such breach (a claim by a third party in respect of that liability hereafter in this Clause 8 being referred to as a "Legal Claim") provided that the liability of either Party in respect of all such losses, damages, claims, liabilities, costs or expenses shall not exceed EUR 385,000 in any year of this Agreement. 8.3 Nothing in the Agreement shall exclude or limit the liability of the Party Liable for death or personal injury to an officer, employee or agent of the Party Not Liable resulting directly from the negligence of the Party Liable or any of its officers, employees and agents and the Party Liable shall indemnify and keep indemnified the Party Not Liable, its officers, employees and agents from and against any losses, damages, claims, liabilities, costs or expenses which the Party Not Liable may suffer or incur by reason of any claim on account of death or personal injury resulting from the negligence of the Party Liable or the negligence of any of its officers, employees or agents (such claim hereafter in this Clause 8 being referred to as an "Injury Claim"). Revision 1 August 2002, Page 20 of 55

23 Distribution Use of System Agreement ESB 06/08/ Subject to Clause 8.3 and any provision of this Agreement which provides for an indemnity, neither Party nor any of its officers, directors, employees or agents shall in any circumstances whatsoever be liable to the other Party for: any loss of profit, loss of revenue, loss of use, loss of contract (other than this Agreement) or loss of goodwill; or any indirect or consequential loss, incidental or special damages (including punitive damages); or loss resulting from the liability of the other Party to any other person howsoever and whensoever arising save as provided in Clause 8.2 and The rights and remedies provided by the Agreement to the Parties are exclusive and not cumulative and exclude and are in place of all substantive (but not procedural) rights or remedies, expressed or implied and provided by common law or statute in respect of the subject matter of the Agreement, including without limitation any rights either Party may possess in tort which shall include without limitation actions brought in negligence and/or nuisance. Accordingly, each of the Parties hereby waives to the fullest extent possible all such rights and remedies provided by common law or statute, and releases the other Party, its officers, employees and agents to the same extent from all duties, liabilities, responsibilities or obligations provided by common law or statute in respect of the matters dealt with in the Agreement and undertakes not to enforce any of the same except as expressly provided herein. 8.6 In the event of any Legal Claim being made against the Party Not Liable, the Party Liable shall be promptly notified of the Legal Claim and may at the Party Liable s own expense conduct all negotiations for the settlement of the same, and any litigation that may arise from the claim. The Party Not Liable shall not, unless and until the Party Liable has failed to, within ten (10) Business Days of receiving notice from the Party Liable requesting it to do so, unconditionally agree in writing to take over the conduct of the negotiations or litigation in respect of the Legal Claim, make any admission which might be prejudicial to the claim. The conduct by the Party Liable of such negotiations or litigation shall be conditional upon the Party Liable having first given to the Party Not Liable such reasonable security as the Party Not Liable shall from time to time notify the Party Liable that it requires to cover the amount ascertained or agreed or estimated, as the case may be, of any losses, damages, claims, liabilities, costs or expenses (subject always to the proviso to Clause 8.2) for which the Party Not Liable may become liable in respect of the Legal Claim. The Party Not Liable shall, at the request of the Party Liable, afford all available assistance for the purpose of contesting the Legal Claim and shall be paid by the Party Revision 1 August 2002, Page 21 of 55

24 Distribution Use of System Agreement ESB 01/08/02 Liable (within ten (10) Business Days of the date of its invoice therefor) all reasonable expenses incurred in so doing. 8.7 In the event of any Injury Claim being made against the Party Not Liable, the Party Liable shall be promptly notified of the Injury Claim and may at the Party Liable s own expense conduct all negotiations for the settlement of the same, and any litigation that may arise from the claim. The Party Not Liable shall not, unless and until the Party Liable has failed to, within ten (10) Business Days of receiving notice from the Party Liable requesting it to do so, unconditionally agreed in writing to take over the conduct of the negotiations or litigation in respect of the Injury Claim, make any admission which might be prejudicial to the claim. The conduct by the Party Liable of such negotiations or litigation shall be conditional upon the Party Liable having first given to the Party Not Liable such reasonable security as the Party Not Liable shall from time to time notify the Party Liable that it requires to cover the amount ascertained or agreed or estimated, as the case may be of any losses, damages, claims, liabilities, costs or expenses for which the Party Not Liable may become liable in respect of the Injury Claim. The Party Not Liable shall, at the request of the Party Liable, afford all available assistance for the purpose of contesting the Injury Claim, and shall be paid by the Party Liable (within ten (10) Business Days of the date of its invoice therefor) all reasonable expenses incurred in so doing. 8.8 Each of the provisions of this Clause 8 shall: be construed as a separate and severable contract term, and if one or more of such provisions is held to be invalid, unlawful or otherwise unenforceable the other or others of such provisions shall remain in full force and effect and shall continue to bind the Parties; and survive termination of the Agreement. 8.9 Each of the Parties agrees that the other Party holds the benefit of Clauses 8.2, 8.3 and 8.4 for itself and as trustee and agent for its officers, directors, employees and agents For the avoidance of doubt nothing in this Clause 8 shall prevent or restrict either Party enforcing any obligation (including suing for a debt) owed to it under or pursuant to the Agreement. Revision 1 August 2002, Page 22 of 55

25 Distribution Use of System Agreement ESB 06/08/02 9. ENERGISATION, DE-ENERGISATION AND DISCONNECTION 9.1 Action on behalf of Users: Energisation Works and De-Energisation Works carried out on behalf of the User pursuant to this Clause 9 shall be carried out by a person who is engaged by the Company to carry out such work The Company shall, to the extent that it may lawfully do so, at the request of the User carry out Energisation Works and De-Energisation Works at the cost of the User within a reasonable time or, in circumstances of urgency, as soon as reasonably practicable. The Company shall inform the User of its reasonable requirements for the details by reference to which Exit Points to be Energised or De- Energised are to be identified If an Exit Point has been De-Energised by or on behalf of a previous User and the Company receives a request from the User to Energise such Exit Point then the Company shall Energise the Exit Point as soon as reasonably practicable at the cost of the User and shall notify the User of the expected date for carrying out the Energisation Works Where the Company resolves to Energise or De-Energise or Energise an Exit Point pursuant to Clause or the Company shall undertake the Energisation Works at the cost of the User and the User shall pay the Company the relevant charges listed at Schedule 1associated with such works The Company shall act in accordance with Good Industry Practice when carrying out or procuring the carrying out of, any Energisation Works or De-Energisation Works. The User hereby indemnifies the Company against all losses, damages, claims, liabilities, costs and reasonable expenses to which the Company may become liable in respect of or in connection with such Energisation Works and/or De- Energisation Works. 9.2 Action by the Company: The Company may, upon (where reasonably practicable) giving the User two (2) Business Days prior written notice, De-Energise any Exit Point if the Company is entitled to do so pursuant to the Connection Agreement relating to such Exit Point Notwithstanding the provisions of Clause the Company may, at any time, De-Energise any Exit Point if: (a) (b) the Company is instructed, pursuant to the terms of the Trading and Settlement Code, the Grid Code or the Distribution Code to do so; the Company reasonably considers it necessary to do so for safety or system or system security reasons; Revision 1 August 2002, Page 23 of 55

26 Distribution Use of System Agreement ESB 01/08/02 (c) (d) (e) (f) the Company reasonably considers it necessary to do so to avoid interference with the regularity or efficiency of the Distribution System; an accident or emergency occurs or threatens to occur which requires the Company to do so to avoid the risk of personal injury to any person or physical damage to the property of the Company, its officers, employees or agents or the property of any other person; subject to the terms of a replacement agreement, this Agreement is terminated in accordance with the provisions of Clause 14; the Company is entitled to do so by law If the Company resolves to De-Energise an Exit Point pursuant to Clause and then: (a) (b) the Company shall decide on the extent and nature of the De- Energisation Works required to De-Energise the relevant Exit Point; and the Company shall Energise the Exit Point as soon as reasonably practicable after the circumstances giving rise to such De-Energisation has ended; Where the Company resolves to De-Energise an Exit Point pursuant to Clause 9.2 following termination of this Agreement by the User under Clause 14.5, the Company shall undertake the De-Energisation Works at the cost of the User If Energisation has not taken place within two (2) Business Days of De- Energisation then the Company shall inform the User that the Exit Point has been De-Energised and shall provide the User with an explanation of the reasons therefor and the likely timescales for Energisation. 9.3 Disconnection If there is no reasonably foreseeable future use for a Metering Point the User shall be entitled to send to the Company a Disconnection Notice. In respect of any Disconnection Notice sent to the Company pursuant to this Clause, the User shall: warrant that to the best of its knowledge and belief, having exercised Good Industry Practice, the Metering Point has been De-Energised and that there is no reasonably foreseeable future use of the Metering Point giving details of any De-Energisation Works which have been undertaken and providing an explanation of why there is no reasonably foreseeable future use for the Metering Point; and Revision 1 August 2002, Page 24 of 55

27 Distribution Use of System Agreement ESB 06/08/ indemnify the Company against all costs, demands, claims, expenses, liability, loss, or damage which the Company incurs in consequence of acting in reliance on the warranty given in Clause which proves to be in any way inaccurate or misleading If a third party contacts the Company to request directly or indirectly that the Company undertakes works in relation to a Metering Point because there is no reasonably foreseeable future use for that Metering Point and the Company is satisfied that the third party is entitled to make such request then the Company shall contact the relevant User and request it to submit a Disconnection Notice. Upon receiving such a request the User shall send the Company the requested Disconnection Notice unless in the User s reasonable opinion there is a reasonably foreseeable future use for the Metering Point If, in any case, in the reasonable opinion of the Company there is a reasonably foreseeable future use for the Metering Point then the Company shall not be obliged to comply with a Disconnection Notice received under Clause 9.3 and where the Company decides not to comply it shall provide the User with the reason for its decision If the Company is of the reasonable opinion that there is no reasonably foreseeable future use for a Metering Point then the Company shall contact the relevant User and request it to submit a Disconnection Notice. Upon receiving such a request the User shall send the Company the requested De-registration Notice unless in the User s reasonable opinion there is a reasonably foreseeable future use for the Metering Point For the avoidance of doubt, the warranty and indemnity contained in Clause shall not apply to any Disconnection Notice requested by the Company pursuant to Clause and Subject to this Clause 9.3, within five (5) Business Days of receipt of the Disconnection Notice, the Company shall send a notification thereof to the MRSO and to such other relevant entity in accordance with the Trading and Settlement Code, instructing it to register the Metering Point has been Disconnected. 9.4 Nothing in this Clause 9 shall prejudice the ability of the Company to recover Use of System Charges under Clause 5. Revision 1 August 2002, Page 25 of 55