(1) Cadent Gas Limited (registered in England and Wales under number 10080864), whose registered office is at Pilot Way, Ansty Park, Coventry, CV7 9JU(“Cadent”); and
(2) The CUSTOMER (whose Customer specific information details form part of this Agreement)
(A) These Terms and Conditions along with all the information provided by the CUSTOMER in the Entry Reinforcement Application Form comprise the entire agreement between the Parties.
(B) The CUSTOMER has requested the completion of an Initial Optioneering Study to understand the feasibility of Reinforcement Work at the site as detailed in the Project Specific Information.
(C) Cadent agrees to undertake the Initial Optioneering Study and the CUSTOMER agrees to pay Cadent in respect of the Initial Optioneering Study which will include details of the proposed reinforcement solution, costs and timeline for the works subject to and in accordance with the terms of this Agreement.
(D) The Customer accepts that the Initial Optioneering Study is a ‘snapshot’ of the network at the time of the study and in no way constitutes a guarantee of capacity or connection availability.
1.1 In this Agreement the following words and phrases will have the following meanings:
“Affiliate” means, in relation to either Party, any subsidiary, subsidiary undertaking or holding company of such Party, and any subsidiary or subsidiary or subsidiary undertaking of any such holding company for the time being as such terms are defined in sections 1162 and 1159(1) of the Companies Act 2006 (as amended);
“Agreement” means the Entry Reinforcement Application and these Terms and Conditions including the recitals and the attached Schedule;
“Application Window” means a period of time as defined by Cadent upon which a customer can register their interest in entry reinforcement.
“Completion Date” means the date upon which Cadent delivers the Initial Optioneering Study to the CUSTOMER;
“Contract Term” means the period commencing upon the date of this Agreement and expiring on the Completion Date;
“Customer Specific Information” means the information and/or data provided in this Application (within the Customer Specific Information section;
“Initial Optioneering Study” means the report prepared by Cadent pursuant to this Agreement as more particularly described in the Schedule ;
“Due Date” will mean the date defined in Clause 4.3;
“Final Sum” will mean £2000 + VAT for Initial Optioneering Study;
“Insolvency Event” will mean any step taken under any legislation including, without limitation, the Insolvency Act 1986, the Insolvency Act 2000 and the Enterprise Act 2002 and any subsequent amendment thereto, or the Party’s constitution or any agreement that is entered into with any of the Party’s creditors which indicates a likelihood of that Party’s insolvency;
“Party” or “Parties” means, where the context so permits, either party to this Agreement or both parties to this Agreement;
“Payment Date” means the date more particularly set out in Clause 4.1;
“Project Specific Information” means the information provided in this Application within the Project Specific Information section;
“Regulation” means any relevant law licence, industry code or other regulation that applies to Cadent’s network and recognising Cadent’s duties regarding discrimination and promoting competition.
“Terms and Conditions” means these terms and conditions including the recitals and the Schedule attached to this Agreement;
“Uniform Network Code” has the meaning given to it in Cadent gas transporter licence granted under section 7 of the Gas Act 1986.
1.2 References in this Agreement to recitals, Clauses and Schedule are to the recitals, clauses and schedule included in this Agreement.
1.3 Any reference in this Agreement to statutes or statutory instruments will include any modification, extension or re-enactment as may be from time to time.
1.4 In the event of conflict between the Clauses of this Agreement and the recitals and Schedule, the Clauses will prevail will.
2.1 Cadent warrants that the Initial Optioneering Study will be undertaken with reasonable skill and care and in accordance with the proper standards of good engineering practice.
2.2 Cadent will provide the CUSTOMER with a copy of the Initial Optioneering Study within 2 weeks of the closing date of the Application Window and following receipt of payment as detailed in Clause 4.1. Cadent will keep confidential and will not disclose to any third party, any information provided by the CUSTOMER in connection with the negotiation or performance of this Agreement provided that this restriction will not apply to information:-
which at the time of disclosure is in the public domain or thereafter becomes part of the public domain otherwise than as a consequence of a breach by Cadent of its obligations under this Clause 2.3 or such information that Cadent or is required to reveal as a result of any legal process or regulatory requirement;
disclosed to persons professionally engaged by Cadent, provided that such persons will be required to be bound by a similar confidentiality undertaking; or
reasonably required to be disclosed to any relevant statutory or non-statutory bodies for the purpose only of completing the Initial Optioneering Study.
2.3 Subject to the requirements of Regulation and to Cadent’s existing statutory duties and obligations, Cadent intends to rely upon the Customer Specific Information and submit any such information in its dealings under any such Regulation;
3.1 The CUSTOMER will provide Cadent with the Customer Specific Information on or before the date of this Agreement. In addition, through the term of this Agreement, the CUSTOMER will promptly provide such further information as Cadent may reasonably request for the proper completion of the Initial Optioneering Study.
3.2 The CUSTOMER represents and warrants that it has the right and authority to disclose the Customer Specific Information to Cadent and agrees that the Customer Specific Information and such other information as it provides under Clause 3.1 is accurate and may be relied on by Cadent (including its employees, officers, directors and consultants, advisers or agents who will all be made aware of this confidentiality obligation provided that such consultants, advisers or agents not being Cadent employees, officers or directors, will be required to be bound by a similar confidentiality undertaking.)
3.3 The CUSTOMER will keep confidential and will not disclose to any third party any information provided by Cadent in connection with the negotiation or performance of this Agreement (including the Detailed Analysis Study Report) provided that this restriction will not apply:-
to any information which at the time of disclosure is in the public domain or thereafter becomes part of the public domain otherwise than as a consequence of a breach by the CUSTOMER of its obligations under this Clause 3.3 or such information that the CUSTOMER is required to reveal as a result of any legal process or regulatory requirement; or
to information disclosed to persons professionally engaged by the CUSTOMER, and the developer of premises at the Proposed System Point, provided that such persons will be required to be bound by a similar confidentiality undertaking.
4.1 In addition to any amounts payable under Clause 4.2, the CUSTOMER agrees to pay to Cadent the Final Sum in consideration of the Initial Optioneering Study immediately after receipt of an invoice for the sum payable under this Clause 4.1 (the “Payment Date”).
4.2 In addition to the amounts under Clause 4.1 in respect of the Initial Optioneering Study, Cadent may, subject to prior notification, invoice the CUSTOMER for all additional costs incurred by Cadent as a result of changes or alterations or additions or omissions made by the CUSTOMER to the information provided to Cadent throughout the duration of the Agreement. In the event that the CUSTOMER notifies changes in accordance with this Clause 4.2 Cadent may, after prior notification to the CUSTOMER and without prejudice to any other of its termination or remedial rights suspend work on the Initial Optioneering Study in the current assessment window.
4.3 The CUSTOMER will pay the sums specified in Clause 4.2 by the “Due Date”, that is immediately following issue of an invoice by Cadent.
4.4 Where any sum due in accordance with the provisions of Clauses 4.1 is the subject of a bona fide dispute the undisputed portion will be promptly paid and after settlement of the dispute any amount agreed or determined to be payable immediately after such agreement or determination and interest thereon will accrue from the date such amount was originally payable to the date of payment at the base lending rate of Barclays Bank plc (or its successor) in London for sterling applicable from time to time plus three (3) percent and compounded annually.
4.5 Should the CUSTOMER fail to make payment on the Due Date of any sum due hereunder, other than payments which are the subject of a bona fide dispute in accordance with Clause 4.4, interest thereon will accrue at the base lending rate of Barclays Bank plc (or its successor) in London for sterling applicable from time to time plus three (3) percent compounded annually from the date when such payment is due until the date the same is made.
4.6 In the event any amount invoiced under Clauses 4.1 and 4.2 remains unpaid after the Payment Date as provided in Clause 4.1 and the Due Date as provided in Clause 4.3, Cadent may, after prior notification to the CUSTOMER and without prejudice to any other of its termination or remedial rights suspend work on the Initial Optioneering Study.
4.7 In the event of suspension pursuant to Clause 4.6, the CUSTOMER will, notwithstanding any other provision of this Agreement and in addition to all other amounts due, remain liable to Cadent for all unavoidable costs and expenses reasonably incurred by reason of said suspension, including but not limited to deposits, standby payments, forfeitures, cancellation and demobilisation and remobilisation fees.
4.8 In addition to the sums payable in accordance with Clauses 4.1 and 4.2, the CUSTOMER will pay Cadent an additional amount equal to any Value Added Tax attributable to such sums on receipt of a proper tax invoice.
5.1 Cadent will not be liable for any loss or damage sustained or incurred by the CUSTOMER resulting from the preparation and completion of the Initial Optioneering Study save as set out in this Clause 5.
5.2 Cadent will not be liable for any indirect or consequential loss or damage, or for any losses caused directly or indirectly with respect to: loss of or deferment of profits; or anticipated profits; loss of contract; bargain; expectation; or opportunity; or revenue loss; or loss of actual or anticipated savings, or business interruption, and any special loss or damage, however caused and whether arising in contract, tort (including negligence and statutory duty), or otherwise, and whether foreseeable or not.
5.3 The maximum aggregate liability of Cadent to the CUSTOMER, whether in contract, tort (including negligence) or otherwise, for any direct loss or damage (other than to tangible property) suffered by the CUSTOMER as a result of any breach of contract or negligence of Cadent or its employees will be limited to two (2) times the total amount of the consideration payable under this Agreement.
5.4 Nothing in this Clause will limit or exclude the liability of Cadent in respect of any death or personal injury caused by the negligence of Cadent.
6.1 Cadent reserve the right to terminate this Agreement should it be concluded that following completion of the Initial Optioneering Study that no reinforcement is required or there is no reinforcement solution available at this time for the project as detailed in Customer Specific Information.
6.2 Cadent may suspend or terminate this Agreement forthwith upon written notice to the CUSTOMER if the CUSTOMER fails to pay by the Due Date for payment any amount due to Cadent under this Agreement within seven (7) days of the CUSTOMER receiving a notice demanding payment from Cadent.
6.3 Either Party may terminate this Agreement on giving written notice to the other if:-
(b) The other Party commits a material breach of its obligations under this Agreement which is incapable of remedy or, if capable of remedy, has not been remedied within twenty-eight (28) days of the receipt by the other Party of written notice demanding remedy of the breach; or
(b) the other Party is deemed to be unable to pay its debts (within the meaning contained in Section 123 of the Insolvency Act 1986) or any Insolvency Event occurs with respect to that Party.
6.4 The CUSTOMER may only cancel or terminate this Agreement without cause before the expiry of the Contract Term subject to the CUSTOMER indemnifying Cadent in full for any losses or expenses that Cadent may incur as a result of that early termination or, where specific cancellation charges have been agreed, subject to the payment by the CUSTOMER to Cadent of such cancellation charges. The CUSTOMER acknowledges that any agreed cancellation charges are intended as liquidated damages and not as a penalty and are a reasonable and genuine pre-estimate of Cadent’s losses.
6.5 In the event any government or governmental supranational state agency or regulatory body will:-
(c) rule or direct that this Agreement (or any part thereof) should not be performed by Cadent; or
(c) institute, threaten or thereafter take any action, suit or investigation to restrain, prohibit or otherwise challenge the rights or obligations contemplated by this Agreement; or
(c) thereafter to take any other action as a result of or in anticipation of the implementation of this Agreement which would have adverse effects on the rights of the parties hereto, Cadent and the CUSTOMER will immediately commence negotiations with a view to agreeing provisions, actions and measures which as far as reasonably practicable retain the economic and commercial effect of the rights or obligations set out in this Agreement.
6.6 In the event that either: -
(b) Cadent and the CUSTOMER cannot, within twenty-eight (28) days, reach agreement in accordance with Clause 6.4; or
(b) no provision, action or measure can be reasonably taken in accordance with Clause 6.4;
then either Party may forthwith terminate this Agreement.
6.7 Upon termination of this Agreement, any sums owing to Cadent will become due and payable immediately by the CUSTOMER upon demand by Cadent.
6.8 The termination of this Agreement will be without prejudice to the rights and remedies of the parties that may have accrued up to the date of termination.
6.9 Clauses 2.3, 3.3, 4, 5, 6, 7, 8, 11, 13, 14 and 16 will survive termination of this Agreement.
Neither Party will be liable to the other for any delay or failure by that Party in performing its obligations under this Agreement where such delay or failure is caused by events beyond the reasonable control of that Party.
All information, data and any intellectual property including but not limited to patents, copyright, design rights, registered designs, trademarks, know-how and inventions which are the property of the Cadent or which Cadent acquires under or in connection with the Detailed Analysis Study Report, including the Detailed Analysis Study Report, other than information, data and intellectual property owned and/or provided by the CUSTOMER in accordance with Clause 3.1 will be and remain the exclusive property of the Cadent at all times.
9.1 This Agreement will not be varied or amended without the prior written agreement of both parties.
9.2 Neither Party will be deemed to have waived its rights under this Agreement unless it has specifically agreed in writing to such waiver.
10.1 Cadent may transfer its rights and obligations under this Agreement to any third party provided that such transfer is not likely to materially adversely affect the quality of service provided to the CUSTOMER.
10.2 Cadent may sub-contract any of its obligations under this Agreement.
10.3 The CUSTOMER will not transfer its rights and obligations under this Agreement without the prior written consent of Cadent (such consent not to be unreasonably withheld).
If any Clause of this Agreement is found to be void or otherwise unenforceable for any reason, it will be deemed to be omitted from this Agreement the validity and/or enforceability of the other provisions of this Agreement will not in any way be affected.
12.1 Any notice, invoice or other communication given pursuant to this Agreement by either Party to the other must be given in writing and may be served by receipted personal delivery, recorded delivery, registered post or e-mail, to the address and for the attention of the relevant Party set out in Clause 12.3 or such other address as may from time to time have been notified in writing to the other Party in accordance with this Clause.
12.2 Any such notice delivered by one Party to the other will be deemed to have been served:
if delivered by hand, upon the Business Day of delivery or on the first Business Day after the date of delivery if delivered on a day other than a Business Day;
if sent by recorded delivery or registered post, on the second Business Day after the day of posting or, if sent from one country to another, on the fifth Business Day after the day of posting; and
if sent by e-mail on the earlier of: (i) the time a return receipt is generated automatically by the recipient’s e-mail server; or (ii) the time the recipient acknowledges receipt; and (iii) twenty-four hours after transmission unless the sender receives notification that the e-mail has not been successfully delivered, except that if deemed receipt would occur before 9:00am on a Business Day, it will instead be deemed to occur at 9:00am on that day and if deemed receipt would occur after 5:00pm on a Business Day, or on a day which is not a Business Day, it will instead be deemed to occur at 9:00am on the next Business Day.
References in this Clause to a time of day are to the time of day at the location of the recipient. In proving the giving of a notice, it will be sufficient to prove that the delivery was made to the appropriate address, the notice was properly addressed and posted or the e-mail was sent to the appropriate e-mail address and dispatch of transmission from the sender’s external gateway was confirmed
12.3 The address of the Parties for the purposes of Clause 12.1 are:
Cadent Gas Limited
Pilot Way, Ansty Park, Coventry, CV7 9KU
For the attention of Jadie Lawley, Head of Future Energy
E-mail: [email protected]
CUSTOMER details as detailed by the CUSTOMER in the Customer Specific Information
or such other address or e-mail address in the United Kingdom as may be notified in writing from time to time by the relevant Party to the other Party.
13.1 Nothing in this Agreement will be interpreted as indicating that the Proposed System Point will, in the event that the Connection Facilities and the Pipeline are constructed, be accepted as a New System Entry Point (as defined in the Uniform Network Code).
13.2 The performance of the HCAS in no way constitutes a guarantee that the Connection Facilities and Pipeline will be commenced or completed.
13.3 Cadent makes no representation or warranty as to the accuracy or completeness of the HCAS and subject to Clause 5 of this Agreement, has no liability arising out of or in relation to any such study report or from any representation or statement contained in such report or other related document.
The Contract (Rights of Third Parties) Act 1999 will not apply to this Agreement and the provisions of the said Act are expressly excluded from this Agreement.
15.1 The CUSTOMER represents and undertakes to the Cadent that the CUSTOMER, (including its engaged contractors) and their sub-contractors or agents, its and their Affiliates, employees, officers, agents and shareholders, have not committed and will not commit or omit to do, any act that will cause or lead the other Party or any of its Affiliates to be in breach of the Bribery Act 2010 and/or the policies referred to in clause 15.3.
15.2 Without prejudice to Cadent’s other rights and remedies, the CUSTOMER will indemnify Cadent in full and on demand against all losses, liabilities, costs, claims and expenses incurred directly or indirectly by Cadent as a result of the performance of any breach of clause 15.1 by the CUSTOMER, or its contractors, or any of its or their Affiliates, employees, officers, agents or shareholders, in connection with the Agreement.
15.3 Without prejudice to the other provisions of this Clause 15, the CUSTOMER will ensure that:
15.3.1 All of the CUSTOMER’S personnel, agents and contractors are fully aware of Cadent’s policies on anti-bribery and anti-corruption notified in writing to the CUSTOMER from time to time by Cadent and that all of the CUSTOMER’S personnel and contractors and agents (of whatever tier) are engaged upon terms which contain provisions in relation to prevention of bribery and corruption which are no less onerous than this clause 15; and
15.3.2 it has and will maintain in place throughout the currency of this Agreement, its own policies and procedures, (including adequate procedures under the Bribery Act 2010), to ensure compliance with Cadent’s policies on anti-bribery and anti-corruption and will enforce them where appropriate.
16.1 Any disputes (other than a breach of confidentiality and Clause 15) under this Agreement are to be first amicably resolved between the Parties by their respective senior executives.
16.2 If such disputes are not resolved within thirty days of such executives attempting to amicably resolve a dispute, then the Parties are to use an agreed form of alternative dispute resolution (“ADR”) such as the Centre for Effective Dispute Resolution(CEDR) Model Mediation Procedure before resorting to court action. Unless otherwise agreed between the Parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing (ADR notice) to the other Party to the dispute requesting a mediation. A copy of the request should be sent to CEDR.
16.3 This Agreement and any dispute between the Parties under or in connection with this Agreement will be governed by the laws of England, and, subject to Clause 16.1 the Parties submit to the exclusive jurisdiction of the Courts of England.
This Agreement will constitute the entire express agreement between the Parties with respect to the HCAS and will supersede any and all prior oral or written understandings, arrangements, undertakings, statements, representations, commitments, warranties, communications and agreements between the Parties hereto with respect to the HCAS. The Parties acknowledge that no claims will arise in respect of any of the foregoing not appearing in or incorporated by specific reference into this Agreement and neither Party will rely on, be bound by or have any remedy in respect of any of the foregoing other than as expressly set out in this Agreement. Nothing in this Clause will operate to exclude the liability of either Party in respect of any fraudulent misrepresentation, fraudulent concealment or other fraudulent action.
This Agreement may be executed in any number of counterparts and by each of the Parties on separate counterparts, each of which when executed will be deemed to be an original, but all of the counterparts together will constitute one and the same Agreement. No counterpart will be effective until each Party has executed at least one counterpart.
