In this Agreement, unless inconsistent with or otherwise indicated by the context:
- “Administration Fee” means the fee charged by the Prepaid Supplier for the Services as notified to the Client from time to time and which fees shall be expressed as a percentage of the Metro Code Consideration,currently 10% (excluding VAT) of the MetroCodeConsideration;
- “Agreement” means this agreement for the provision of the Servicesand includes any annexures, appendices or schedules to this agreement;
- “Applicable Rate” means the specific tariff rates that the Prepaid Supplier will apply to the consumption of electricity, gas or waterat the Property from time to time. It may comprise of a number of different components, but most commonly:
- a usage charge (“Usage Charge”) for example per kilowatt (kwh) of electricity consumed
- a standing charge (“Standing Charge”) for the costs of providing an electrical, gas or watersupply;
- “Bank Charges” means charges levied against the Prepaid Supplier (including but not limited to those levied by any bank, payment gateway or card merchant) in the course of receiving, processing or transmitting Metro Code payments;
- “Client” means the person responsible for payment to a UtilityProvider, electricitydistributor or reseller for electricityconsumed at the Property (whether that person is the owner of the Property, theauthorisedagent of the owner, or a lessee of the Property);
- “Client Code” means the Supplier Group Code that has been entered into or is recorded in a Prepaid Meter of the Client from time to time;
- “Client Proceeds” means the proceeds of the Metro Code Consideration that is payable by the Prepaid Supplier to the Client as contemplated in clause2.1 below;
- “Commercial Property” means any Property that does not qualify as Residential Property;
- “Common Area Charge” means autility charge that relates to the Property, or a common area related to the Property, and for which the Client is liable but which is not accounted for in the Occupant’s consumption as recorded by the Prepaid Meter (provided that any such charge shall represent a true reflection of the actual expense incurred by the Client);
- “Instruction” means an instruction issued by the Client to the Prepaid Supplier from time to time, whether telephonically or in writing (including but not limited to email or telefax);
- “Merchant Fee” means actual charge levied against the Prepaid Supplier by Metro Code Vendors which fee shall be expressed as a percentage of the Metro Code Consideration currently 0% (excluding VAT) of the Metro Code Consideration;
- “Meter Equipment” means the Prepaid Meter as well as vending equipment and credit-dispensing units;
- “Metro Code” means a uniquely identifiable prepaid voucher code, with a speciﬁc value, which is issued in respect of a particular Property and which may be redeemed using Meter Equipment in order to consume electricity, gas or waterat that Property;
- “Metro CodeConsideration” means the total sum paid by, or on behalf of the Occupant,as consideration for a specific Metro Code;-
- “Metro Code Utility Value” means the value of the electricity that is made available to the Occupant pursuant to the payment of the Metro CodeConsideration and the issuing and redemption of that Metro Code(and, if applicable, following the deduction of the Service Fee from the Metro CodeConsideration as contemplated in clause 1.4 below);
- “Metro CodeReceipt” means a printed or electronic record produced at the point-of-purchase for the purchaser of a Metro Codethat details theencrypted Metro Code, the cost of electricity, gas or water, Service Feeand constitutesa valid VAT receipt;
- Metro CodeVendormeans a third-party seller of Metro Codes (including retail outlets and other third party vending points and channels);
- “Occupant Agreement” means the lease, usage or other agreement in terms of which the Occupant acquires the right to occupy the Property and/or consume electricity, gas or water at the Property;
- “Occupant” means the person or persons who occupy the Property and/or consume electricity, gas or water at the Property;
- “Parties” means the Client and the Prepaid Supplier, and “Party” means any one of them, as the case may be;
- “Prepaid Supplier” means trading as Metro Prepaid Limited(Company number –11078280)or any successor in title or permitted assign from time to time;
- “Property” means the Property in respect of which the Services are to be provided (and which is as described in the Registration Form or the details of which have been provided as part of the Instruction);
- “Prepaid Meter” means a pre-paid electricity, gas or water dispenser, owned by the Client, that has been or is to be installed at the Property;
- “Registration Form” means the form to which this Agreement is attached and which is to be completed by the Client;
- “Relevant Laws” means all laws governing the Client in relation to the provision of electricity, gas or water at the Property, including but not limited to the ElectricityAct of 1989, allregulations, and all other relevant statutory provisions;
- “Residential Property”means any property that would constitute a “dwelling-house”as contemplated in the Housing Act;
- “Services” means Prepaid Metering Systemadministration services includingprepaid funds collection, Metro Code generation and related miscellaneous supporting and reporting services;
- “Service Fee” means the aggregate of the Administration Fee, the Bank Charges and the Merchant Fee;
- “STS” means Standard Transfer Specification, the global standard for ensuring the inter-operability of different Meter Equipment and Prepaid Metering Systems, and the transferability of encrypted Metro Codes;
- “STS Association” means the Standard Transfer Specification Association, a company not for profit registered in terms of the laws of the Republic of South Africa under registration number NPC 95/08496/08, and which is responsible for the management and administration of STS;
- “System” means a software management system utilized for the issuing and redemption of Metro Codes;
- “SystemSupplier” means the third-party supplier that has been contracted, by the Prepaid Supplier, to provide the System;
- “Supplier Group Code” means an STS code used to link Meter Equipment to the System of a particular System Supplier;
- “UtilityProvider”means the provider of the mainssupplyof electricity, gas or waterat the Property of the Client.
- The Client has purchased and installed, or is in the process of purchasing and installing, the Prepaid Meter.
- The Client hereby appoints the Prepaid Supplier:
- to render the Services to the Client on the terms and conditions recorded in this Agreement;
- as its agent to collect payment from the Occupants on its behalf;
- as its agent to share cost and usage information with and to request proposals from alternative Utility Providers for the supply of electricity, gas or water at the Property.
This Agreement shall commence on the date of acceptance of the Prepaid Supplier’s terms of service by the Client and shall endure for an indeﬁnite period provided that either Party may cancel the Agreement by giving the other Party 30 days’ written notice of its intention to do so.
4. INSTALLATION AND SET UP
- The Client shall:
- appoint an electrician, plumber or other trade certified competent personto install the Prepaid Meter;
- ensure that the Prepaid Meter has been installed correctly and thatcompliance with regulations has been certified by the electrician, plumber or trade certified competent person;
- ensure that the Client’s electrical, gas or waterinstallation in relation to the Prepaid Meter complies with all Relevant Laws relating to its installation, operation, usage and maintenance (and the Prepaid Supplier shall have no responsibility or liability to the Client in that regard).
- Provide the Prepaid Supplier with sufficient accurate information (including Utility Provider invoices) to enable the Prepaid Supplier to register the Prepaid Meter on its system for the Client.
5. SERVICE FEES TO BE BORNE BY CLIENT OR BY OCCUPANT
In the event that the Property qualifies as a Residential Property, the Client agrees and acknowledges the following:
- No person is authorised to make a profit from or to charge any Occupant for the consumption of electricityat a rate or at an amount in excess of that expressly authorised by Relevant Laws;
- The Applicable Ratecharged to the Client by the Utility Providerat the Property mustbe used to calculate the tariffto be levied on behalf of the Client, and considering the provisionsbelow(Clauses : 4.1.3/4/5 and 4.2);
- The Service Fees due to the Prepaid Supplier in respect of the Residential Property shall, based on theClient’s instruction,be borne by the Client (and may be recouped by means of a provision in the sum charged for rental), with the result that the Metro Code Utility Valuerepresents the full amount of the Metro CodeConsideration :
Metro Code Utility Value= Metro CodeConsideration
Note that:the Service Fees are detailed on the Metro CodeReceipt, but thatthe number of kilowatt hours(kwh)issued to the Occupantin the Metro Codeis based on the full Metro Code Consideration;
- Notwithstanding the aforegoing, in the event that the Client provides an Instruction to the effect that the Service Feesare to be borne by the Occupant, then – to the extent permitted by the Relevant Laws from time to time – the Service Fees shall be borne by the Occupant, with the result that the Metro Code Utility Value is reduced in accordance with the following calculation:
Metro Code Utility Value = Metro Code Consideration – Service Fees
and in such event the Client warrants that the Occupants have, in writing in the Occupancy Agreement, duly and irrevocably consented to the deduction of the Service Fees from the Metro Code Consideration (with the result that there is a corresponding reduction in the Metro Code Utility Value).
Note that:the Service Fees are detailed on the Metro CodeReceipt, and that the number of for example kwh issued to the Occupant in the Metro Codeis based on the Metro Code Consideration less the Service Fees;
- Notwithstanding the provisions of this clause (and to the extent permitted by the RelevantLaws from time to time), the Client shall be entitled to issue an Instruction to the effect that the Prepaid Supplier shall cause the Common Area Charges (if applicable) to be borne by the Occupant, whereupon the Common Area Charges shall too be deducted from the Metro Code Consideration, with the calculation being as follows:
Metro Code Utility Value = Metro Code Consideration – (Service Fees +Common Area Charges)
- In the event that the Property qualifies as Commercial Property, the Client agrees and acknowledges the following:
- To the extent permitted by Relevant Laws, the Client shall be entitled to provide the Prepaid Supplier with an Instruction:
- as to the Applicable Rate– subject to the proviso that, where no such Instruction is given, the Applicable Rate shall be the tariff charged to the Client by the Utility Providerfor its main supply;
- as to whether the Service Fee is to be borne by the Client (as contemplated in clause 1.3 above) or the Occupant as contemplated in clause 4.1.4 above)– subject to the proviso that, where no such Instruction is given, the Client shall be deemed to have given an Instruction to the effect that the Service Fee is to be borne by the Occupant;
- as to whether a Common Area Charge shall apply and whether, if so, it is to be borne by the Occupant (as contemplated in clause 1.5 above).
- Where the tariff consists of daily or monthly or annual Standing Charges, the Client may elect, subject to regulations, add a proportionate share (based on the number of separate Occupants or other fair basis) of the Standing Charge (on a daily basis) to the tariff charged to Occupants.
- The Client is responsible for ensuring that the correct Applicable Rate(as described in 4.1, 4.2and 4.3above) has been set on the Prepaid Supplier’s System. The Prepaid Supplier will not be liable for any losses incurred to the Clientor its Occupants or any otherparty in relation to an Appicable Ratethat is incorrect or does not comply to any laws or regulations.The Clientis alsoresponsiblefor notifying the Prepaid Supplier of any changes to the Appicable Ratedue to changes or adjustments to the Client’s Utility Provideror its t
- The Client may also instruct the Prepaid Supplier to collect any other amounts owing or owed to the Client by the Occuppant under the Occupancy Agreement (for example rental, water consumption, arrear service costs), either as:
- A fixed portion of each Metro Code purchased by the Occupant for the relevant Prepaid Meter (in which case the Metro Code receipt will reflect one portion for vended electricity, gas or water and another for the payment of the amount owed, or;
- As a completely separately collected amount, using a unique barcoded number issued to the Client for each Occupant specially for the purpose of the desired collections;
The Service Fees levied on any rental collections shall be a fixed fee.
6. METRO CODE ISSUING, PAYMENTS & REPORTING
- Metro Codes shall be issued:
- by such methods as the Prepaid Supplier may reasonably determine from time to time, which methods may include issuance of printedMetro Codes to Occupants or electronic issuance via email or SMS messaging;
- for any value which an Occupant may request, subject to a maximum or minimum Metro Code value which the Prepaid Supplier may impose from time to time.
- within a reasonable period after receipt of funds for the Metro Codes- payment forMetro Codes may be made:
- by direct deposit or bank paymentby Occupants to such bank account as may be nominated by the Prepaid Supplier from time to time;
- by credit card payment through the Prepaid Supplier’s website;
- by hand-held terminal linked to the Prepaid Metering System;
- to participating retailers subscribing to the Prepaid Metering System;
- via bank ATMs; or
- by such other methods as may be determined from time to time by the Prepaid Supplier
- The Prepaid Supplier shall:
- by the seventh business day of each month, remit to the Client the Client Proceeds, being the Metro CodeConsideration collected by the Prepaid Supplier from the Occupant during the immediately preceding month,less the Service Fee, less any other amounts that may be due and payable by the Client to the Prepaid Supplier from time to time;
- keep full and proper accounts and records of all transactions concluded in relation to the Services for a reasonable period; and
- provide the Client with access to relevant reports.
7. CHANGE IN SUPPLIER GROUPS
Where this Agreement is terminated for any reason, the Client shall be entitled to request that the Prepaid Supplier provides the key change Metro Codes that would enable the Client to connect the Prepaid Meter to a system operated by an alternative prepaid supplier, provided that the Prepaid Supplier shall be entitled to charge the Client a reasonable administration fee for doing so.
8. APPOINTMENT OF AGENT
The Client hereby nominates, constitutes and appoints the Prepaid Supplier, with power of substitution, to act as its lawful attorney and agent and to do all that it may do in relation to the Prepaid Meter and the Client Code, including but not limited to:
- requesting any information from the STS Association, its delegated department, its member, its licensee or its service provider to effect any change that may be required to the Client Code from time to time;
- the reformatting updating, replacement and amendment to the Client Code;
- the reversion of the Supplier Group Code to the default Supplier Group Code for the manufacturer of the Prepaid Meter, including but not limited to by means of the supply of key change Metro Codes to the Prepaid Supplier.
9. EXCLUSIONS AND LIMITATIONS OF LIABILITY
To the fullest extent permitted by statute:
- The Prepaid Supplier warrants that it is entitled to provide the Services butprovides no other warranties, whether statutory, express or implied (and all such other warranties are excluded save where prohibited by law).
- The Prepaid Supplier does not warrant that the Services will be uninterrupted or error free, nor is any warranty given or implied as to the suitability of the Services for any particular purpose, notwithstanding that any such purpose may be known or ought reasonably to have been known to the Prepaid Supplier.
- The Prepaid Supplier shall not be liable for any delay, failure, breakdown, damages, losses, cost, claims, fines or expenses arising from:
- the use of or access to the Services by the Client or any Occupant, or from an inability of either the Client or any Occupant to access or use the Services;
- any fault in any Meter Equipment or in the Prepaid Meter System;
- any circumstances outside of the reasonable control of the Prepaid Supplier;
- the intentional or negligent act or omission of any person not being a duly authorised employee, sub-contractor, agent of the Prepaid Supplier or any third party not authorised to act in terms of these terms and conditions;
- the actions, omissions or service interruptions of any Utility Provider or third party service provider, including any telecommunications, network or electrical service provider.
- Without in any way derogating from the provisions of clauses 1or 8.3, the Prepaid Supplier shall not liable to the Client in any event for loss of profits or for indirect, incidental, special or consequential damages arising out of or in connection with the performance or non-performance of the Services or use of any Meter Equipment of Prepaid Meter System. The Client agrees and acknowledges that the supply of electricityto the Property is always subject to and dependent on the supply of electricityby the relevant Utility Provider, and – to the extent permitted by statute, indemnifies and holds harmless the Prepaid Supplier against any claims from an Occupant or any other person or party that may arise from such non-supply, interruption, power surge or any other activity not reasonably falling under the control of the Prepaid Supplier.
- Under no circumstances will the Prepaid Supplier be liable for any damages sustained by the Client or its Occupants in circumstances where the Prepaid Supplier has performed its duties as set out in this Agreement with reasonable care and skill or in accordance with the reasonable standards of the industry.
- Without in any way derogating from the provisions of clauses 1to 8.5, any liability by the Prepaid Supplier to the Client under this Agreement, whether arising out of contract or delict, will be limited to direct damages only and shall not exceed, in the case of a claim by any Client, an amount equal to 150% of the Service Fees charged in the month preceding the month in which the claim arose.
To the fullest extent permitted by statute and without derogating from any of the other provisions of this Agreement, the Client indemnifies the Prepaid Supplier and its employees against all losses, damages, costs or expenses (whether direct or indirect) which the Prepaid Supplier may suffer or incur and all and any claims which may be brought against the Prepaid Supplier and/or its employees by any third party in respect of any loss, liability (whether actual, contingent, or otherwise), damage, costs and expenses of any nature whatsoever as a consequence of or which may arise from or be attributable to the breach by the Client of any of the provisions of this Agreement or any act or omission on the part of the Client or from any other cause whatsoever.
11. UNDERTAKINGS AND ACKNOWLEDGEMENTS BY CLIENT
- The Client warrants that the information provided in the Registration Form and all Instructions are true and correct. The Client shall notify the Prepaid Supplier, in writing, immediately upon there being any change in the details reflected in the Registration Form.
- The Client confirms that it has the power to enter into and perform its obligations under this Agreement and that it has taken all necessary action to authorise the execution, delivery and performance of this Agreement, and that, this Agreement constitutes valid and binding obligations of the Client and is enforceable against the Client in accordance with its terms.
- The Client confirms that the provisions of this clause 10,and clauses 8, 9and 11have expressly and specifically been brought to the attention of the Client.
- The Client acknowledges that the Prepaid Supplier is neither a generator, supplier or distributor of electricity, gas or water.
- The Client warrants that:
- it shall comply withanyRelevant Laws;and
- the terms and conditions of the Occupancy Agreement comply withanyRelevant Laws.
12. AMENDMENTS AND NOTICES
- To the fullest extent permitted by law,the Prepaid Supplier may amend or substitute any terms or conditions of this Agreement by issuing a notice addressed to the Client.
- A notice sent to the Client shall be deemed to have been received by the Client within seven (7) days after the date of sending.
- The Client shall be bound by the amendments unless the Prepaid Supplier has been notified otherwise in writing within seven (7) days after receipt of notice.
- Should any amendment be unacceptable to the Client, the Client will have the right to cancel this Agreement.
In the event of either of the Parties committing a breach of any of the terms of this Agreement and failing to remedy such breach within a period of ten days after receipt of a written notice from the other Party calling upon the defaulting Party so to remedy, the aggrieved Party will be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim speciﬁc performance of the terms of this Agreement, or to cancel this Agreement forthwith and without further notice claim and recover damages from the defaulting Party.
14. FORCE MAJEURE
- If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement from any cause beyond the reasonable control of that party (including without limiting the generality of the aforegoing, war, civil commotion, riot, insurrection, fire, explosion, flood and acts of God), the party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss of damages either general, special or consequential which the other party may suffer due to or resulting from such delay or failure, provided always that written notice shall within 48 (forty‑eight) hours of the occurrence constituting force majeure be given of any such inability to perform by the affected party and provided further that the obligation to give such notice shall be suspended to the extent necessitated by such force majeure.
- Either Party invoking force majeure shall use its best endeavours to terminate the circumstances giving rise to force majeure and upon termination of the circumstances giving rise thereto, shall forthwith give written notice thereof to the other Party.
15. NOTICES AND DOMICILIA
- The Parties choose as their domicilia citandi et executandi their respective addresses set out in this clause for all purposes arising out of or in connection with this Agreement at which addresses all processes and notices arising out of or in connection with this Agreement, its breach or termination may validly be served upon or delivered to the Parties.
- For purposes of this Agreement the Parties’ respective addresses will be, in the case of:
- the Prepaid Supplier: Unit 1, Tims Boatyard, Timsway, Staines-upon-Thames, TW18 3JY, UK;
- the Client: at the Property;
or at such other physical street address in The United Kingdomof which the Party concerned may notify the other in writing.
- Notwithstanding the provisions of clause 1, a written notice or other communication actually received by either Party including by means of a data message shall be adequate written notice or communication to that Party notwithstanding that the notice was not sent to or delivered at its chosen domicilium.
- Save to the extent contemplated in clause 11 above, no addition to or variation, consensual cancellation or novation of this Agreement will be of any force or effect unless:
- recorded in the manner contemplated in clause 11 below; or
- reduced to writing and signed by the Parties or their duly authorised representatives.
- No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement, and no single or partial exercise of any right by any Party under this Agreement, will in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or stop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. No waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by waiving Party concerned.
- The Parties confirm that they have the power to enter into and perform their obligations under this Agreement and that they have taken all necessary action to authorise the execution, delivery and performance of this Agreement, and this Agreement constitutes valid and binding obligations enforceable against the Parties in accordance with its terms.
- Termination or expiry of this Agreement for any cause does not release any Party from any liability which at the time of termination or expiry has already accrued to such Party or which thereafter may accrue in respect of any act or omission prior to such termination or expiry.
- If any provision of this Agreement that is not material to its efficacy as a whole is rendered void, illegal or unenforceable in any respect under any law of any jurisdiction, the validity, legality and enforceability of the remaining provisions are not in any way affected or impaired thereby and the legality, validity and unenforceability of such provision under the law of any other jurisdiction are not in any way affected or impaired.
- This Agreement is governed by and shall be construed in accordance with the laws of The United Kingdom.
- The Parties acknowledge that there may be circumstances during the currency of this Agreement where implementation of certain provisions of this Agreement may not be feasible, in which event the parties shall negotiate with each other in good faith with a view to achieving a mutually satisfactory alternative, failing which the provisions of this Agreement shall prevail.
- The Client shall not be entitled to cede or assign any of its obligations in terms of this Agreement without the written consent of the Prepaid Supplier.
- Any change in ownership or control of the Prepaid Supplier shall not be grounds for termination of this Agreement by the Client and the Prepaid Supplier shall be entitled to cede and assign any of its rights and obligations in terms of this Agreement by the delivery of written notice to the Client at any time.
- Save to the extent contemplated in clause 11 above, this Agreement constitutes the whole Agreement between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
- The Client agrees and records that:
- Instructions may be given telephonically and the Agreement may be entered into by means of an oral acceptance conveyed by the Client to the Prepaid Supplier telephonically;
- the Client grants the Prepaid Supplier the right to record on audio tape (or any other format) any conversations the Prepaid Supplier may have with the Client.