1. Application
By completing and submitting a *Service Request the *Applicant agrees to enter into the *Contract with *Western Power comprising the:
a) *Service Request; and
b) *Terms and Conditions,
and commencing upon *Western Power’s receipt of the *Service Request.
2. Review of *Service Request
1) Upon receipt of the *Service Request submitted by the *Applicant, *Western Power will review the *Service Request and determine, in its absolute discretion, whether or not to proceed with the *Service.
2) Following the review of the *Service Request pursuant to clause 1, *Western Power will notify the *Applicant whether or not *Western Power will proceed with the *Service.
3. Fees
The fee for the *Service comprises:
a) is set out in the fee schedule published by *Western Power at:
westernpower.com.au/industry/electrical-contractors/electrical-contractor-service-request; and
b) any additional charges reasonably incurred by *Western Power as a result of the *Assumed Conditions not being met.
4. Payment
1) The *Applicant must pay the fees for the *Service up front using *Western Power’s online payment system as used from time to time unless the fees are incurred under clause 3(b) above in which case:
a) Western Power will issue the *Applicant with a tax invoice for the fees for the *Service calculated in accordance with clause 3(b); and
b) the *Applicant must pay the tax invoice within 30 days of the date of issue of the tax invoice. The date of issue will be specified on the tax invoice.
2) In terms of payments made using *Western Power’s online payment system the *Applicant acknowledges and agrees that:
a) Western Power’s online payment system may be operated by a third party financial institution and as such information provided by the *Applicant on that system will be held in accordance with the relevant financial institution’s privacy policy; and
b) Western Power will issue the *Applicant with a cash receipt following payment.
5. Performance of the *Service
*Western Power does not guarantee the timeframe for the commencement or completion of the *Service.
6. Assumed conditions
1) The *Service is provided on the basis of the following assumed conditions:
a) there is suitable electricity supply from the *Network infrastructure in the street fronting the *Supply Address to enable the *Service to be performed;
b) *Western Power has unobstructed access at all times during the performance of the *Service to the electrical infrastructure on the *Supply Address which are necessary for *Western Power to perform the *Service (e.g. the meter, pillar and conductors);
c) the location and height of the electrical conductors servicing the *Supply Address fulfil the requirements of *Western Power’s Distribution and Connections Manual and EnergySafety’s Western Australian Electricity Rules;
d) the electrical installation at the *Supply Address is ready to be connected to the *Network and conforms with all of *Western Power’s technical requirements including those set out in Western Power’s Distribution and Connections Manual;
e) an EnergySafety Preliminary Notice issued pursuant to the Electricity (Licensing) Regulations 1991 (WA) being received by *Western Power prior to the *Service commencing, except for isolations for non-electrical work or where an isolation of an existing installation is required to perform the works e.g., phase conversion, overhead to underground conversions, an appointment for electrical works;
f) a Notice of Completion issued pursuant to the Electricity (Licensing) Regulations 1991 (WA) being received by *Western Power from an appropriately licensed electrical contractor prior to *Western Power performing the Service where the *Services relate to electrical works and require the installation of a meter where the electrical installation being energised has not previously been connected to the network such as temporary overhead supplies, new installations;
g) an appropriately licensed electrical contractor engaged for or on behalf of the *Applicant is in attendance on the *Work Site at the time *Western Power performs the *Service where the *Service relates to electrical work;
h) for isolations for non-electrical work, sub meter to master meter and phase conversion, the *Work Site contact person must be in attendance and it is recommended that an electrical contractor be available to attend on site, if required;
i) the *Supply Address electrical installations are safe;
j) the *Applicant removes and replaces the meter panel at the *Supply Address if it contains asbestos or fibreglass or is otherwise deemed as requiring replacement by *Western Power;
k) the *Applicant delivers any *Applicant deliverables communicated by *Western Power in the comments section of the Service Request to the *Applicant;
l) all information provided by the *Applicant to *Western Power to be used by *Western Power with respect to the *Service is accurate;
m) during the performance of the *Service, the *Applicant provides *Western Power any information it reasonably requests from the *Applicant within a reasonable timeframe;
n) the *Applicant provides to *Western Power access to the *Work Site and any related approvals as reasonably required by *Western Power for its performance of the *Service, as and when *Western Power requires such access;
o) *Western Power is not required to provide the *Applicant with additional information, including explanations, justifications, proving established *Western Power methods, and presentation of alternative options with respect to the *Service;
p) the *Service can be performed in a continuous manner.
2) If Western Power identifies that any *Assumed Conditions have not been met then *Western Power will not be obliged to carry out the *Service but may do so, in its discretion, after any necessary rectification works have occurred.
7. Work Site
The *Applicant and the Applicant’s *Personnel must:
a) not cause any damage or interference with the performance of the *Service, the *Work Site or *Western Power’s *Personnel or equipment; and
b) observe all reasonable requirements, directions or instructions of *Western Power and its *Personnel when at the *Work Site.
8. Limit of liability
1) To the extent permitted by law and subject to clauses 2 and 8.3, *Western Power will have no liability for any *Loss to the *Applicant in connection with the performance of the *Service, howsoever arising, except in relation to defects in the *Service which will be limited to the re-performance of the *Service.
2) Subject to clause 3, a *Party has no liability to the other, nor is a *Party entitled to make any *Claim, in respect of any *Indirect or Consequential Loss incurred or sustained by the other *Party as a result of any act or omission of that *Party (whether negligent or otherwise) or as a result of a breach of the *Contract by that *Party.
3) The limitations of liability in clause 2 do not apply in respect of any fraud, deliberate default or wilful misconduct or any act or omission done or not done by a *Party with a reckless disregard for the consequences by the other *Party (or any other person for whom the *Applicant or *Western Power is responsible).
9. Ownership
The *Applicant acknowledges and agrees that all physical works installed as part of the *Service and all *Intellectual Property* in the design and installation of those works will at all times be held by and remain the property of *Western Power, and the *Applicant will not acquire any proprietary or other interest in any of those works by reason of the *Contract or action or any representation under the *Contract except where *Western Power determines otherwise.
10. Property boundaries
1) The *Applicant is responsible for accurately pegging all applicable property boundaries to enable the accurate placement of any works associated with the *Service.
2) If *Western Power, in its absolute discretion, considers that the applicable property boundaries are not clearly defined by either surveyor pegs, full length fencing, existing definable permanent structures or local government services, *Western Power may provide *Notice to the *Applicant requiring the *Applicant to confirm the boundaries location by survey pegging prior to the *Service proceeding.
11. Work data and confidential information
1) All *Work Data will at all times be held by and remain the property of *Western Power, and the *Applicant will not acquire any proprietary or other interest in any of the *Work Data by reason of the *Contract or action or any representation under the *Contract.
2) Subject to clauses 3 to 11.6 (inclusive), the *Applicant will have the right to use the *Confidential Information for the purposes of progressing the *Service.
3) The *Parties must keep confidential, and not use or disclose, any *Confidential Information, except as permitted by the *Contract and immediately notify the other *Party if it becomes aware of any loss or unauthorised use, access, copying or disclosure of any *Confidential Information.
4) A *Party may, to the extent necessary disclose *Confidential Information to its *Personnel who have a specific need to access that *Confidential Information, but then only to the extent that they need, for the purposes of performing the relevant obligations or exercising the relevant rights arising under or pursuant to this *Contract.
5) The obligations in clause 3 do not apply to any disclosure of information:
a) to a *Party’s legal advisers who are under a duty of confidence;
b) made with the other *Party’s prior written consent, which can be withheld in its discretion or given subject to conditions;
c) required to be disclosed to any government agency in connection with the granting of any *Government Approval required under the *Contract or the fulfilment by *Western Power of any of its functions;
d) any disclosure required by any legal requirement (including any order of a court of competent jurisdiction) or the rules of any stock exchange or statutory duty or a government minister; and
e) which is, at the relevant time, in the public domain other than as a result of a breach by a *Party of its obligations under the *Contract.
6) The *Applicant must, and must procure that its *Personnel, either:
a) return to *Western Power; or
b) destroy or delete,
as *Western Power directs, all original documents and copies (including in electronic form) in the *Applicant’s possession, custody or control which comprise, contain, reproduce, are based on, utilise or relate to the *Confidential Information, at the earliest of the following:
c) as soon as such documents and other materials, or any of them, are no longer required by the *Applicant or its *Personnel, as applicable;
d) immediately on demand by *Western Power; or
e) the termination of the *Contract.
12. Freedom of information
1) The *Applicant acknowledges that *Western Power is legally bound by the Freedom of Information Act 1992 (WA) and that the *Contract or *Work Data may become the subject of an application under that Act and access to them may need to be given to a third party in accordance with that Act.
2) *Western Power has no liability to the *Applicant whatsoever for giving access to a document in accordance with the Freedom of Information Act 1992 (WA).
13. Default
1) If, during the *Contract, a *Party breaches the *Contract, the other *Party may issue a default *Notice specifying the breach details and requiring the defaulting *Party to remedy the default.
2) If a default occurs and the defaulting *Party fails to remedy it within ten *Business Days after receipt of a default *Notice then a critical default has occurred and the non-defaulting *Party may exercise its rights in accordance with clause 14.
14. Termination
1) This *Contract may be terminated by *Notice with immediate effect by:
a ) either *Party if the other *Party suffers an *Insolvency Event;
b) either *Party if the other *Party commits a critical default under clause 2; or
c) the *Applicant, at any time, for its sole convenience.
2) Termination of the *Contract is without prejudice to:
a) the rights and obligations of the *Parties under the *Contract arising prior to termination; and
b) except as otherwise provided in the *Contract, any rights or remedies which may be available to a non-defaulting *Party under the *Contract or at law or in equity.
3) Following the termination of this *Contract pursuant to clause 1 *Western Power will refund to the *Applicant any fees paid by the *Applicant for the *Service less any costs incurred by *Western Power in relation to the *Service up to the date of termination.
15. Dispute resolution
1) In the event of a dispute in relation to the subject matter covered by the *Contract, either *Western Power or the *Applicant must deliver a *Notice of dispute to the other *Party.
2) The *Party delivering the *Notice of dispute must provide enough information about the dispute for the other *Party to reasonably understand the dispute, the basis on which it is claimed and the relief that is claimed.
3) Unless otherwise agreed in writing, all communications at or in relation to these meetings are without prejudice and confidential, and an agreement reached must be in writing and signed by both *Western Power and the *Applicant.
4) Neither *Party may issue proceedings to have a dispute determined unless the dispute is not resolved within 35 calendar days after the relevant *Notice of dispute was originally delivered (or such further period as the *Parties mutually agree).
5) Nothing in the *Contract affects the *Applicant’s rights under an electricity ombudsman scheme made under the Electricity Industry (Ombudsman Scheme) Regulations 2005 (WA) or the Electricity Industry Act 2004 (WA).
16. GST
1) Unless the context indicates otherwise, words or expressions used in this clause which are defined in the *GST Act have the same meaning in this clause as in the *GST Act.
2) Unless otherwise stated, all amounts payable or the value of other consideration provided in respect of the supplies made under the *Contract are exclusive of *GST.
3) If a *Party (supplier) makes a taxable supply under or in connection with the *Contract:
a) the consideration otherwise payable or to be provided for that supply is increased by, and the *Party paying or providing the consideration (recipient) must also pay to the supplier, an amount equal to the *GST payable by the supplier on that supply;
b) the recipient must pay the *GST amount in Australian dollars, at the same time and to the same extent as it must pay or provide the consideration for that supply; and
c) the supplier must issue a tax invoice to the recipient of the supply at or before the time of payment of the *GST inclusive consideration or at such other time as the *Parties agree.
4) Where any amount is payable to a *Party as a reimbursement, offset, indemnification or similar payment calculated by reference to a loss, cost, expense or any other amount incurred by that *Party, then such amount must be reduced by any part of that loss, cost, expense or other amount which is attributable to *GST for which that *Party, or the representative member of any *GST group of which that *Party is a member, is entitled to an input tax credit.
17. Miscellaneous provisions
1) (Entire Agreement) This *Contract states all the express terms of the agreement between the *Parties in respect of its subject matter and supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.
2) (Subcontracting and assignment)
a) *Western Power may subcontract all or any part of the *Service to any person without the *Applicant’s consent.
b) The *Applicant must not assign, transfer or novate any rights or obligations under the *Contract without *Western Power’s prior written consent.
c) If *Western Power is restructured by *Law or through other means, including the use of subsidiary or associated companies or the transfer of assets, rights and liabilities, then the rights and obligations of *Western Power under the *Contract are assigned to and assumed by the appropriate legal entity as determined by *Western Power or the successors of *Western Power under the restructure.
3) (Variation) A variation of any term of the *Contract must be in writing and signed by the *Parties.
4) (Waiver) The failure of either *Party to enforce any provision of the *Contract will not affect that *Party’s rights to require complete performance by the other *Party, nor will the waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself. Any waiver to be effective must be in writing and signed by or on behalf of the *Party granting the waiver.
5) (Severance) If any part of the *Contract is or becomes void, voidable or otherwise invalid or unenforceable, whether due to the provisions of any statute or otherwise, that part:
a) will be read down, if possible, so as to be valid and enforceable; or
b) will be severed from the *Contract to the extent that all parts of the *Contract that are not or do not become void, voidable or otherwise invalid or unenforceable will remain in full force and effect and be unaffected by such severance.
6) (Supplementary rights) Any right that a *Party may have under the *Contract is in addition to (and does not replace or limit) any other right that the *Party may have.
7) (Giving effect to the *Contract) At the *Applicant’s cost, the *Applicant must do anything (including execute any document) and must ensure that its *Personnel do anything (including execute any document), that *Western Power may reasonably require to give full effect to the *Contract.
8) (Notices) A *Notice:
a) must be legible, in writing and delivered by hand or sent by pre-paid post or fax or email to:
i) *Western Power at:
A) post: Locked Bag 2520, Perth, Western Australia 6001;
B) fax: (08) 9225 2643;
C) online: submit an online enquiry; or
ii) the *Applicant at the address, fax number or email address specified by the *Applicant in the *Service Request;
b) sent by post is regarded as being received on the second *Business Day following the date of postage;
c) sent by facsimile is regarded as being received one hour after it is sent on production of a transmission report by the machine from which it was sent which indicates that the facsimile was sent in its entirety to the recipient’s fax number, unless the recipient informs the sender that the *Notice is illegible or incomplete by 4.00pm on the next *Business Day after the day it was transmitted;
d) sent by email is regarded as being received one hour after it is sent, unless the sender receives notification from its or the recipient’s email server that the email is undeliverable or was not delivered; and
e) delivered or received other than on a *Business Day or after 4.00pm (recipient’s time) is regarded as being received at 9.00am on the following *Business Day and a *Notice delivered or received before 9.00am (recipient’s time) is regarded as received at 9.00am.
9) (Multiple parties) If the *Applicant is made up of more than one person, the following rules will apply:
a) an obligation imposed on the *Applicant is imposed jointly and severally on those persons who comprise the *Applicant;
b) a right of those persons who comprise the *Applicant is held by each of them severally;
c) any other reference to the *Applicant, is a reference to each of those persons who comprise the *Applicant separately, so that (for example) a representation, warranty or undertaking is given by each of them separately; and
d) the *Contract is enforceable against and binds each and every person who executes it, notwithstanding that any other person referred to in the *Contract has not executed it, or any other person has failed to perform any obligation or undertaking in it.
10) (Survival of terms) Clauses 6 (Limit of liability), 9 (Ownership), 11 (Work Data), 12 (Freedom of information) and 15 (Dispute resolution) in the *Contract, survive the termination of the *Contract and continue in full force and effect.
11) (No reliance) The *Applicant has not relied on any statement by *Western Power not expressly included in the *Contract.
12) (Consent of *Party) Whenever the *Applicant requires the consent or approval of *Western Power to do anything under or in respect of the *Contract, *Western Power may withhold its consent or approval or give it conditionally or unconditionally in its sole and absolute discretion unless expressly stated otherwise in the *Contract.
13) (Relationship of *Parties) The relationship of the *Parties is that of independent parties and nothing in the *Contract will be construed so as to constitute one *Party a partner, joint venturer, agent, employee or representative of the other, or to create any partnership or trust for any purpose whatsoever.
14) (Sale of goods) The United Nations Convention on Contracts for the International Sales of Goods (1980) does not apply to the *Contract.
15) (Costs)
a) Each *Party must pay their own costs and expenses in respect of the negotiation, preparation and execution of the *Contract.
b) The *Applicant must pay the duty payable under the Duties Act 2008 (WA), if any, on the *Contract and any copies of the *Contract and any other document in connection with the *Contract.
16) (Electricity regime) Nothing in the *Contract in any way affects, limits or alters the:
a) rights and obligations of the *Parties under any applicable *Access Contract except as described in the *Access Contract;
b) *Applicant’s right to transfer electricity to or from *Western Power’s *Network; or
c) operation or effect of the Electricity Corporations Act 2005 (WA), Energy Operators (Powers) Act 1979 (WA), Electricity Industry Act 2004 (WA), or any Regulations, By-laws or Orders or subsidiary legislation made under these Acts.
17) (Governing law and jurisdiction) This *Contract is governed by the law in force in Western Australia. Each *Party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in *Western Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this *Contract.
18. Interpretation
1) In the *Contract, unless the contrary intention is expressed:
a) a reference to a statute, rule, ordinance or other law, includes regulations, codes and other instruments under it and consolidations, amendments, re-enactments or replacements (whether in substantially the same or a different form) of any of them;
b) the singular includes the plural and the plural includes the singular;
c) the word “person” includes a firm, a body corporate, company, corporation, partnership, joint venture, association, authority, and any government agency as well as an individual;
d) the words “include” and “including” mean "include, without limitation" and "including, without limitation" respectively;
e) a reference to a person includes a reference to the person's administrators, successors, substitutes (including persons taking by novation) and assigns;
f) headings are inserted for convenience and do not affect the interpretation of the *Contract;
g) words of any gender include all genders;
h) other parts of speech and grammatical forms of a word or phrase defined in the *Contract have a corresponding meaning;
i) a reference to a clause, party, schedule, attachment or exhibit is a reference to a clause of, and a party, schedule, attachment or exhibit to, the *Contract and a reference to the *Contract includes any schedule, attachment and exhibit;
j) a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
k) a promise on the part of two or more persons binds them jointly and severally;
l) a reference to an agreement other than the *Contract includes a deed and any legally enforceable undertaking, agreement, arrangement or understanding, whether or not in writing;
n) no provision of the *Contract will be construed adversely to a *Party because that *Party was responsible for the preparation of the *Contract or that provision; and
i) a reference to a body, other than a *Party (including an institute, association or authority), whether statutory or not:
ii) which ceases to exist; or
iii) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions.
19. Definitions
Unless the context otherwise requires, the defined terms in column 1 below have the respective meanings in column 2:
| Column 1 | Column 2 |
|---|---|
| *Access Contract | the access contract under the Electricity Networks Access Code 2004 (WA) that contains, or will contain, the connection point to which the *Service relates. |
| *Access Offer | has the meaning given to ‘access offer’ in clause 2.1 of the ‘Applications and Queuing Policy as defined under the Electricity Networks Access Code 2004 (WA). |
| *Applicant | the applicant as described as such in the *Network Service Request. |
| *Assumed Conditions | the assumed conditions described in clause 6. |
| *Business Day | a day that is not a Saturday, Sunday or public holiday in Perth, Western Australia. |
| *Claim | a demand, action or proceeding of any nature whether actual or threatened. |
| *Confidential Information | the terms of the *Contract and all information which is received by one *Party from the other *Party under the *Contract (and includes *Work Data). |
| *Contract |
has the meaning given in clause 1. *EnergySafety responsible for the technical and safety regulation of all the electrical and most of the gas industry in Western Australia. |
| *Government Approvals | approvals, certificates, permits, licences, consents, authorisations and agreements from or with a government agency necessary to perform the *Service. |
| *GST | the goods and services tax levied under the *GST Act. |
| *GST Act | A New Tax System (Goods And Services Tax) Act 1999 (Cth). |
| *Indirect or Consequential Loss |
(a) includes loss of revenue, loss of profit, loss of business opportunity and payment of liquidated sums, penalties or damages under any agreement (other than the *Contract); but (b) does not include damage or losses arising from *Claims by third parties or *Western Power’s *Personnel in respect of property damage, personal injury or nervous shock. |
| *Insolvency Event |
the happening of any of the following: (a) a *Party informs the other *Party in writing or its creditors generally that it is insolvent or is financially unable to proceed with the *Contract; (b) execution is levied against a *Party by a creditor and is not stayed or discharged within 20 *Business Days; (c) if a *Party is an individual person or a partnership including an individual person and that person: (i) commits an act of bankruptcy or presents or has a bankruptcy petition presented against him or her or is made bankrupt; (ii) makes a proposal for an arrangement or a composition with his or her creditors or enters a debt agreement under Part IX or a personal insolvency agreement under Part X of the Bankruptcy Act 1966 (Cth) or like provision under the law governing this *Contract; or (d) if a *Party is a corporation and: (i) it fails to comply with, or have set aside, a statutory demand within 20 *Business Days of the time for compliance; (ii) a meeting of creditors is called with a view to the corporation entering a compromise or arrangement with its creditors or it enters a deed of company arrangement with its creditors; (iii) a controller or administrator is appointed to it; or (iv) an application is made to a court for its winding up and not stayed or discontinued within ten *Business Days or a winding up order is made in respect of it or a resolution is made that it be wound up. |
| *Intellectual Property | all intellectual and industrial property rights, including trademarks, copyright (including future copyright), inventions, patents, designs, circuits and other eligible layouts, database rights, and other intellectual property rights as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation dated 14 July 1967 (as amended from time to time), including any application or right to apply for registration of any of these rights. |
| *Laws | any act, ordinance, regulation, subordinate legislation, by-law, award or proclamation of the State of Western Australia or the Commonwealth of Australia. |
| *Loss |
(a) any liability, cost, expense, loss, personal injury (including illness), death or damage; and (b) in relation to a *Claim, includes amounts payable on the *Claim and (whether or not the *Claim is successful) legal costs and disbursements on an indemnity basis. |
| *Network | has the meaning given to ‘Western Power Network’ in the Electricity Networks Access Code 2004 (WA). |
| *Service Request |
the online ‘Service Request’ form as published on *Western Power’s website |
| *Notice | a notice or other communication under the *Contract. |
| *Party | a party to the *Contract. |
| *Parties | all of the parties to this *Contract. |
| *Personnel | officers, employees, agents, consultants, invitees, visitors and contractors of a *Party (excluding the other *Party). |
| *Service | the works requested by the *Applicant under the *Network Service Request. |
| *Supply Address | the property address which the *Service directly relate to. |
| *Western Power | Electricity Networks Corporation (trading as Western Power) ABN 18 540 492 861, a statutory body corporate established by section 4(1)(b) of the Electricity Corporations Act 2005 (WA). |
| *Work Data | the information, studies, reports and data exchanged between the *Parties for, and derived from, the performance of the *Service, in whatever form. |
| *Work Site | the location(s) at which *Western Power may or will require access for the purposes of performing the *Service, which may include third party land, the *Applicant’s premises, the *Network, *Western Power’s premises or any other premises. |