POWER SUPPLY TERMS & CONDITIONS

Tatu City Power Company SEZ Limited – Electricity supply agreement (Property Owner / Tenant)

WHEREAS the Property Owner is registered as proprietor of a leasehold interest over the Property (herein described) and has requested for supply of energy at the Property by the Provider;
The Provider has agreed to supply electricity to the Property Owner subject to continued compliance by the Property Owner (or any other owner, occupier or invitee) with the terms of this contract, and subject also to payment of the monies payable by the Property Owner to the Provider in accordance with this contract.

1. DEFINITION OF TERMS AND INTERPRETATION
1.1. Definition of Terms
1.1.1.“Acceptance Certificate” means a declaration by the Parties confirming that the delivery of energy may commence in accordance with these terms and conditions;
1.1.2.“Account” means the Provider’s records of the Property Owner’s particulars pertaining to consumption of energy at the Property;
1.1.3.“Affiliate” in relation to either party to this contract means any company or other entity which directly or indirectly controls such party or is controlled by such party or is under common control with such party;
1.1.4.“Aggrieved Party” means a Party who has suffered or is likely to suffer any loss or damage due to the Offending Party’s default;
1.1.5.“Ancillary Documents” means the documents listed in clause 1.2.3;
1.1.6.“Business Day” means any day, excluding Saturdays, Sundays, National Days as defined in the Constitution of Kenya and gazetted public holidays in the Republic of Kenya;
1.1.7.“Change of Control” means a change in the person or entity, or a group of related or associated persons or entities, entitled directly or indirectly to exercise or control the exercise of fifty per cent (50%) or more of the rights to vote at any general meeting of its shareholders or control the appointment of directors who are able to exercise a majority of votes at its board meetings; For these purposes “Control” of an entity that is not a natural person means the direct or indirect power to direct, or cause the direction of, the management or policies of the specified entity, through the ownership of shares, by contract or otherwise. The terms “Controlled by” and “under common Control with” shall be construed accordingly;
1.1.8.“Commercial Operation Date” means the last date of signature of the Acceptance Certificate by or on behalf of the Provider and the Property Owner;
1.1.9.“Complaint Handling Procedure” means the Provider’s Complaint Handling and Dispute Resolution Policy and the Customer Charter as amended from time to time;
1.1.10.“Confidential Information” shall include without limitation any technical commercial, scientific information, know-how, trade secrets, business ideas, processes machinery, designs, drawings, technical specifications and data in whatever form disclosed to or accessed by either Party or its affiliates, employees, agents or subcontractors during performance of the respective Parties’ obligations in connection with these terms and conditions;
1.1.11.“Connection Point” means the technical point where the Parties agree to connect their respective power infrastructure for purposes of delivery of Energy to the Property for the term;
1.1.12.“Declaration” means the Master Declaration of Covenants, Conditions and Restrictions (as modified from time to time) registered against the titles in respect of each parcel of land comprising the Service Area;
1.1.13.“Disconnect” means the act of switching off equipment so as to prevent the flow of energy at a Connection Point;
1.1.14.“Effective Date” means the last date of signature of these terms and conditions by the Parties;
1.1.15.“Electricity Guidelines” means the Energy Act, No. 1 of 2019 as amended from time to time and any subsidiary legislation, the EPRA Tariff Policy, the Kenya Electricity Grid Code, Industry Standards and any other codes, directives, guidelines and policies governing electrical power supply as may be applicable from time to time;
1.1.16.“Emergency” means a condition or situation, which in the reasonable opinion of either Party does materially and adversely, or is likely to materially and adversely present a physical threat to persons or property for the security, integrity or reliability of the Provider, Property Owner or End-User’s equipment;
1.1.17.“Energy” means electrical power;
1.1.18.“End User” includes but is not limited to any Tenants, licensees, guests or invitees of the Property Owner;
1.1.19.“EPRA” means the Energy and Petroleum Regulatory Authority;
1.1.20.“EPRA Tariff Policy” means the Schedule of Tariffs set by EPRA for Supply of Electrical Energy applicable to the Provider as amended from time to time;
1.1.21.“Force Majeure Event” means an event of an extraordinary nature, which was not caused by the party claiming for it and beyond the reasonable control of the party claiming it and that could not be reasonably foreseen and avoided by reasonable means and which is not caused by a Party’s own fault or negligence and shall include without limitation an un-planned failure, disconnection or interruption of connectivity to the Provider’s equipment, an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out; explosion; fire; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; local, regional or world threats or outbreak of infectious disease, epidemic or pandemic disease(s); the binding order of any governmental authority (provided that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any governmental authority (provided that such action has been timely requested and diligently pursued); unavailability of power from the national grid, equipment, supplies or products (but not to the extent that any such availability of any of the foregoing results from a Party’s failure to have exercised reasonable diligence); and failure of equipment not utilized by or under the control of a Party to these terms and conditions.
1.1.22.“Industry Standards” means, in relation to equipment, those specifications for such equipment as are prescribed by the Kenya Bureau of Standards or in the absence of a Kenyan standard, any other internationally acceptable standard;
1.1.23.“Kenya Electricity Grid Code” means the Kenya National Transmission Grid Code and the Kenya National Distribution Grid Code as amended from time to time;
1.1.24.“Meter” means any and every kind of machine, device or instrument used for the measurement of the quantity of energy, and includes such auxiliary appliances necessary for the proper functioning and operation of the meter;
1.1.25.“Offending Party” means a Party that is in default of the terms of these terms and conditions;
1.1.26.“Party” means the Provider and the Property Owner or Tenant individually as the case may be, and the term “Parties” shall refer to both of them;
1.1.27.“Permitted Use” means use of the Provider’s equipment at the Property by the Property Owner and/or its End Users strictly in accordance with these terms and conditions and applicable laws, regulations and lawful directives of the EPRA and any other concerned government authorities;
1.1.28.“Property” means all that parcel of land whose particulars are set out at page 1 of these terms and conditions;
1.1.29.“Property Owner” means any person or entity who, for the time being, is entitled to legal or beneficial ownership of a parcel of land at Tatu City;
1.1.30.“Subcontractor” means such person or entity appointed by the Provider to undertake inspection, installation, testing, commissioning, repair or maintenance on the Provider’s behalf;
1.1.31.“Service Area” means all those parcels of land known as Land Reference Number 28867/1, Land Reference Number 117, Land Reference Number 11294/2 (Original Number 11294) and Land Reference Number 31327 (Original Number 31326) located in Kiambu County in the Republic of Kenya;
1.1.32.“Provider” means Tatu City Power Company SEZ Limited a limited liability company incorporated in the Republic of Kenya having its principal place of business at Tatu Connect Offices, Ruiru-Kiambu Road, Ruiru and of P. O. Box 2739 – 00621 Nairobi, Kenya;
1.1.33.“Tenant” means a person lawfully occupying the Property pursuant to a registered lease agreement executed between such tenant and the Property Owner;
1.1.34.“Term” means one (1) year from the Effective Date (the “Initial Term”), which Term shall renew automatically for further consecutive terms of one (1) year each (each a “Renewal Term”) (unless earlier terminated as hereinafter provided).
1.2. Interpretation

1.2.1.Unless otherwise expressly indicated or the context otherwise requires, in these terms and conditions (including the recitals and the Appendix hereto):

  • appendices hereto shall be read as part and parcel of these terms and conditions;
  • any reference to any statute or statutory provision shall, save as otherwise expressed in these terms and conditions, be construed as a reference to that statute or provision as it is amended consolidated extended or re-enacted from time to time and any orders regulations instruments or other subsidiary legislation made from time to time under any statute provided that any such amendment consolidation extension or re-enactment does not have retrospective effect;
  • reference to a party shall, where the context so admits, include its successors in title or representatives and assigns;
  • the word “tax” shall be construed to include any tax, levy, imposed assessment, duty or other charge of a similar nature (including, without limitation, value added tax, stamp duty, excise duty, income tax, withholding tax, stamp duties, tariffs, fiscal charges and other dues or any similar tax-related charges or levies of whatsoever nature imposed, levied or assessed by any governmental authority in accordance with present or future laws and/or regulations in the Republic of Kenya and any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) and “taxation” shall be construed accordingly;
  • references to “writing” or “written” includes faxes and electronic mail;
1.2.2.Clause headings are for convenience only and shall not affect the construction of these terms and conditions.

1.2.3.The following Ancillary Documents shall be read as part and parcel of these terms and conditions. For the avoidance of doubt, such Ancillary Documents (as modified from time to time) shall be legally binding and enforceable with effect from the date of signing of these terms and conditions or the date of publication of such Ancillary Documents (whichever is later):

  • Complaint Handling Procedure;
  • The Declaration; and
  • Such other policies, procedures and guidelines as may be published by the provider and approved by EPRA pursuant to Clause 17.7 hereof.

1.2.4.In the event of any conflict between these terms and conditions and any Ancillary Documents, the applicable provisions shall be interpreted in the following order of priority:

  • Constitution of Kenya;
  • The Electricity Guidelines;
  • The Ancillary Documents referred to in Clause 1.2.3 of these terms and conditions;
  • These present terms and conditions;
  • Any notices and correspondence issued by or on behalf of the provider in connection with supply of Energy by the provider to the Property Owner or End-user.

2. BACKGROUND
2.1.The Provider shall undertake implementation of these terms and conditions either by itself or through a Subcontractor appointed by the provider at its sole discretion. Further, the Provider may vary such appointment (including the selection of the Subcontractor, tenure and terms of engagement) at any time by issuance of seven (7) days’ prior written notice to the Property Owner or End-User.
2.2.The Provider shall be responsible for ensuring that the Subcontractor complies with these terms and conditions in all respects.
2.3.The Provider shall coordinate installation, testing, commissioning, operation, repair, maintenance, replacement and removal of the Provider’s equipment by the Subcontractor, subject to issuance of prior written notice at least forty-eight (48) hours prior and scheduling with the Property Owner or End-User (except in the event of an Emergency in which case no notice shall be required).

3. THE PROVIDER’S EQUIPMENT
3.1.The Provider’s equipment shall be installed in accordance with the technical architecture diagram furnished by The Provider to the Property Owner (as modified from time to time by issuance of written notice by the Provider to the Property Owner).
3.2.The Provider shall arrange for installation, maintenance and repair of the Provider’s equipment by the Subcontractor at no cost to the Property Owner.

3.3.These terms and conditions do not constitute a contract to sell the Provider’s equipment to the Property Owner or any End User. The Provider’s equipment and conduits for conveying electric power (including supply lines, meters, fittings, works and apparatus installed by or on behalf of the Provider up to the Property Owner’s metering panel) shall at all times remain the property of the Provider and accordingly:

  • The Provider may repair, remove or replace any such equipment at any time including meters subject to a 48-hour prior written notice to the Property Owner or End-User or such other period as may be mutually agreed;
  • The Property Owner shall not have any proprietary interest in such equipment and shall not create, or cause or permit to be created, any right, title, interest or lien over the Provider’s equipment in favour of a third party;
  • Such equipment shall not be subject to distress for rent due from the Property Owner or any End User or occupier of the Property, nor liable to be taken in execution under any insolvency or liquidation proceedings.
3.4.The Provider shall be responsible for arranging for repair, maintenance or replacement of all or part of the Provider’s equipment as and when necessary in accordance with the terms agreed with the Subcontractor, if applicable. Scheduled maintenance will be undertaken upon issuance of at least 48 hours’ prior written notice by the Provider (either by itself or through the Subcontractor) to the Property Owner or End-User, except in the event of an Emergency in which case no notice shall be required.
3.5.The Provider shall ensure that the Provider’s equipment shall be reasonably fit for the intended purpose and of merchantable quality. If certain equipment proposed for installation by the Provider is unavailable, the Provider reserves the right to substitute the same with other equipment of a comparable description and functionality. Save as expressly provided in this clause or otherwise required by law, the Provider makes no further representations, warranties, assurances or guarantees to the Property Owner or any third party regarding the output, performance, functionality, features or specifications of the Provider’s equipment.
3.6.The Provider shall ensure that the Subcontractor and its employees, agents and contractors will possess the requisite professional knowledge, skills and experience necessary to enable them to competently carry out their duties under these terms and conditions.
3.7.The Property Owner or End-User agrees and acknowledges that: (3.7.1) The Provider’s equipment shall be fit for the intended purpose for which it is installed and conforms to Industry Standards. Energy output may be affected by factors outside control such as tampering; (3.7.2) The Provider’s equipment may from time to time require upgrading, modification, maintenance or other works that may restrict delivery.
3.8.The Property Owner or End User shall: not use equipment for criminal purpose; not tamper; promptly inform Provider of faults/theft.
3.9.If Property Owner/Tenant causes damage to Provider’s equipment, they shall reimburse repair costs (at cost, with supporting docs), except if damage directly attributable to Provider.
3.10.Procedure for establishing damage causation shall be as per Provider’s Complaint Handling and Dispute Resolution Policy.

4. PROPERTY OWNER’S EQUIPMENT AND PROPERTY
4.1.Property Owner shall ensure its equipment meets Industry Standards and interconnection requirements.
4.2.Property Owner to provide drawings and single line diagrams; no material changes without Provider’s written consent.
4.3.Property Owner fully responsible for its equipment and all risks from Connection Point.
4.4.Property Owner to grant access for inspection, installation, maintenance etc. Provider not liable for loss if access denied timely.
4.5.If Provider/Subcontractor damages Property, Provider shall repair expeditiously at its cost, unless damage directly attributable to Property Owner.
4.6.If repairs not completed within reasonable time, Property Owner may after 7 days’ notice (or shorter for Emergency) undertake repairs and claim reimbursement.
4.7.Property Owner shall not make modifications that impede Provider’s equipment.
4.8.30 days’ notice for intended renovations; Provider may vary technical architecture if needed.

5. INSTALLATION, TESTING AND COMMISSIONING
5.1-5.5Provider undertakes civil works for installation. Parties exchange information. Provider may reject application for reasons including false information, non-payment, irregular permits, demolition orders, prohibition by law. After successful testing, Parties sign Acceptance Certificate. Delivery commences on signing.

6. DELIVERY AND USE OF ENERGY
6.1-6.4Energy only for Permitted Use. No resale without retail licence. Comply with Electricity Guidelines. All tax credits, renewable energy credits belong to Subcontractor; Property Owner to cooperate.

7. COMPLIANCE
7.1-7.2Property Owner shall ensure compliance with laws, EPRA directives, these Ts&Cs, manufacturer specs, insurance conditions; share statutory notices with Provider within 3 business days.
8. INSURANCE
8.1-8.2Property Owner insures Property against fire/lightning etc. Provider and Subcontractor maintain employers’ liability and public liability.
9. INDEMNITY AND LIMITATION OF LIABILITY
9.1-9.4Mutual indemnity for breach. No indirect/consequential loss. Limitation does not apply to breach of compliance/IP/confidentiality or personal injury/death.
10. FORCE MAJEURE
10.1No liability for delay/failure due to Force Majeure Event.
11. CONFIDENTIALITY
11.1-11.2Confidential information to be held in confidence; exceptions for public domain, legal requirement, etc.
12. INTELLECTUAL PROPERTY
12.1-12.2Each Party retains IP in its Materials; grants limited license for evaluation/implementation.
13. DISCONNECTION / SUSPENSION
13.1-13.2Provider may disconnect under Section 160 of Energy Act (7 days’ notice except Emergency). Reconnection after remedy and reconnection fee.
14. DURATION/TERMINATION
14.1-14.5Initial Term 1 year, auto-renewal. Voluntary termination: 90 days’ notice. Termination for breach: 14 days cure then 7 days’ notice. Upon termination: decommissioning and settlement.
15. GOVERNING LAW AND DISPUTE RESOLUTION
15.1-15.2Governed by laws of Kenya; disputes resolved via Complaint Handling Procedure.
16. ETHICS AND CODE OF CONDUCT
16.1Parties to act ethically, prevent bribery/corruption, assist investigations.
17. GENERAL PROVISIONS
17.1-17.8Notices, independent contractors, assignment restrictions, entire agreement, waiver, severability, variations (minor unilateral for tariff compliance; material variations require EPRA approval; change in law variations), counterparts.

APPENDIX 1: TARIFF, BILLING AND PAYMENT TERMS
General: The Electricity Guidelines and EPRA Tariff Policy apply. Property Owner to abide.
Deposit: Property Owner shall pay deposit as notified; Provider may require increase. Bank guarantee or insurance bond acceptable in lieu. Deposit may be applied toward undisputed amounts due.
Billing and Payments: If meter defective, Section 159 of Energy Act applies. Charges inclusive of withholding tax, exclusive of other taxes. Invoice disputes within 14 days, else deemed accepted. Late payment charge 10% per annum. Default may be reported to credit reference bureau after 90 days overdue.

IN WITNESS WHEREOF the parties have duly executed these terms and conditions the day and year first hereinbefore written.
Tatu City Power Company SEZ Limited – Licensed electricity provider. For detailed policies and dispute resolution, visit our customer portal.