Terms and Conditions

1. Interpretation and definitions

1.1. In the Agreement, where applicable and unless otherwise stated:

(a) references to the singular include references to the plural and vice versa;

(b) words denoting persons shall include a natural person, bodies corporate and unincorporated associations of persons and shall include permitted successors or assigns of such persons. 

(c) headings are inserted for convenience only; 

(d) references to any statute, statutory provision, statutory instrument, regulation or code include any amendments, extensions and re-enactments thereof;

(e) references to "including”, “includes” and “in particular" are illustrative only, and shall not limit the sense of the words preceding them and each of them shall be deemed to incorporate the expression “without limitation”; and

(f) a word importing one gender shall (where appropriate) include any other gender;

1.2. These definitions shall apply to the Agreement and have the corresponding meanings assigned to them:

“Abortive Site Visit” means as defined in clause 7.6.1; 

“Accredited” means a person who has a formal industry licence and/or accreditation of qualifications, systems and business processes;

“Act” means the Electricity Act 1989 as replaced, repealed or amended from time to time;

“Additional Charges”

means, where you have a Non-Inclusive Plan, the charges for the Additional Services as specified in your Initial Proposal; 

“Additional Meter Point(s)” means Meter Point(s) which were not included in your Initial Proposal and in respect of which you wish for us to provide Contracted Services;

“Additional Meter Point(s) Charges” means as defined in clause 12.2.1(b);

“Additional Meter Point(s) Proposal” means as defined in clause 12.2.1 (Additional Meter Point(s) Proposal); 

“Additional Meter Point(s) Services” means as defined in clause 12.2.1 (a);

“Additional Services” means installation of the Metering Equipment and any Site Visits within Normal Business Hours;

“Affiliate” means, in relation to either Party, any "subsidiary", any "holding company", any subsidiary of such holding company, any "group undertaking", any "subsidiary undertaking", or any "parent undertaking" with each phrase having the same meaning as their respective definitions in sections 1159 to 1162 inclusive of the Companies Act 2006;

“Agreement” has the meaning given in clause 1.1;

“Agreed Service Period” means in respect of each Meter Point, the period from and including the relevant Start Date to and including the earlier of (i) the End Date; or (ii) the date upon which the Agreement is terminated in accordance with these General Terms and Conditions;

“All-Inclusive Charges” means, where you have an All-Inclusive Plan, the charges for the All-Inclusive Services as specified in your Initial Proposal;

“All-Inclusive Plan” means the plan of that name specified by us to you in Writing;

“All-Inclusive Services” means:

(a) the provision (including where applicable installation) of the Metering Equipment;

(b) maintenance of the Metering Equipment; and

(c) Site Visits within Normal Business Hours. 

“Appointed” means an Accredited person appointed to a role by following formal industry process including those roles and processes set out or referred to in industry agreements (Appoint and Appointment shall be interpreted accordingly);

“Associated Telecommunications ”

means the technology, data communication lines, network connections and telecommunications links and access from your meter to our data centres and that enables remote retrieval of data from your meter at the Meter Point(s), as is more particularly described in your Proposal, and as may be amended by us from time to time;

“Authorised Supply Capacity”

means the total amount of electricity which may be consumed at a Meter Point in any given period as agreed with the relevant Network Operator; 

“Authority” means the Gas and Electricity Markets Authority (GEMA), the Office of Gas and Electricity Markets (Ofgem), Competition Markets Authority (CMA) or HMRC;

“Balancing and Settlement Code” means the code of that title and all related documents comprising a set of rules to which electricity market participants are required to conform, a copy of which can be found at elexon.co.uk;

“Barclays Business Premium Bank Rate” means as published on the Barclays website from time to time;

“Charge”; “Charges” “Charged” means:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges;

(b) The Additional Charges; and

(c) any Additional Meter Point(s) Charges (where applicable);

“Codes of Practice” Means the Code of Practice (CoPs) as defined by Elexon which detail the technical requirements for meters;

“Commencement Date”

means as defined in Clause 2.1;

“Commissioning”

Means the process to ensure that the electricity flowing across a Meter Point is accurately recorded by the associated Metering Equipment;

 “Contracted Services” means, in respect of the Metering Equipment at each Meter Point:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Services; and

(b) any Additional Meter Point(s) Services; or

(2) Where you have a Non-Inclusive Plan:

(a) the Non-Inclusive Services;

(b) any Additional Services; and

(c) any Additional Meter Point(s) Services

 

“Contract Year” means a period of 12 Months commencing on the Start Date and any anniversary thereof;

“Credit Bureaux” means an establishment which collects and compiles data on individuals or businesses in order to evaluate the financial stability of such individuals or businesses;

“Data Controller”

means as defined in the GDPR;

“De-Appointment Notification” 

means in relation to an Appointed Meter Operator, the cessation or expiry for any reason of the Appointment and “De-Appointed” shall be construed accordingly;

“De-Energisation” means, in respect of the Metering Equipment or any part of it, the occurrence of any activity or the taking of any step which causes the Energisation of the Metering Equipment or the relevant part of it, as the case may be, to cease and “De-energise” shall be construed accordingly;

“Deemed Rates” means the rates and charges applicable for the ongoing provision of the Contracted Services being those equivalent to the Charges we apply from time to time for the provision of the Contracted Services for one Contract Year;

“Direct Debit” means a pre-authorised payment under which you authorise your bank to pay a fixed and/or a variable amount of money directly to us at regular intervals, as shown in the Proposal;

“Due Date” means as defined in clause 10.4.3;

“Early Termination Charge” means as defined in clause 16.3.1;

“Elexon”

means an independent body that procures, manages and operates services and systems, which enable imbalance settlement of the wholesale electricity market and retail competition in electricity supply;

“End Date”

means the end date specified in the Initial Proposal;

“Energisation”

means the insertion of any fuse into the Metering Equipment so as to enable electricity to flow;

“Force Majeure”

means an act of God, industrial action (except where solely restricted to employees of the Party claiming a force majeure event), an act of the public enemy or terrorist, war declared or undeclared, sabotage or act of vandalism, civil commotion, lightning, earthquake, hurricane, fire, storm, flood, drought, accumulation of snow or ice, explosion, exceptional breakage or accident to machinery or pipelines, governmental restraint, and any other cause which is beyond the reasonable control of the affected Party. Notwithstanding the foregoing, "Force Majeure" shall not include: any economic hardship, change in financial conditions or the inability or failure to pay any amount due under this Agreement;

“GDPR”

means the EU General Data Protection Regulation (Regulation (EU) 2016/679), as may be amended, consolidated or re-enacted from time to time);

“General Terms and Conditions”

means these General Terms and Conditions relating to the performance of the Contracted Services, as varied from time to time;

“Good Industry Practice” means, acting in a good and workmanlike manner and exercising a degree of skill, care and diligence, which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in providing services of the same size, type, scope and complexity as us under the Agreement and under the same or similar circumstances; 

 

“HMRC” means HM Revenue and Customs;

“Initial Proposal” means our proposal, which includes our statement of Charges, the duration of the Agreement and any special conditions applicable to the performance of Contracted Services tin respect of the Meter Point(s); 

“Insolvency Event” means circumstances under which either Party: 

(a) has a receiver or similar officer appointed over all or a material part of its assets or undertaking; 

(b) passes a resolution for winding-up (other than a winding-up for, or in connection with, any solvent amalgamation or reconstruction) or a court makes an order to that effect or a court makes an order for administration (or any equivalent order in any jurisdiction); 

(c) enters into any composition or arrangement with its creditors (other than relating to a solvent restructuring); 

(d) ceases to carry on business; 

(e) is unable to pay its debts as they become due in the ordinary course of business;

 

“Letter of Authority”; “LOA”

means a letter, issued and signed by you, that authorises a TPI to act on your behalf in regarding the Agreement;

“Metering Equipment” means the meters, Associated Telecommunications, outstations, wiring and any other equipment necessary for the installation and operation of the foregoing;

“Meter Operator” means the party responsible for installation and maintenance of the Metering Equipment; 

“Meter Point”; “Meter Points”

means the particular location on the Premises where the Metering Equipment is to be provided or installed as set out in the Proposal or otherwise notified to us in Writing in a timely manner prior to the Start Date;

“Month”; “Monthly”; “Months”

means a calendar month;

“Network”

“Network Operator”

means the local electricity distribution network;

means in respect of a Meter Point, the distribution network operator responsible for the operation of the Network;

“Non-Inclusive Charges” means the charges for the Non-Inclusive Services as specified in your Initial Proposal;

“Non-Inclusive Plan” means the plan of that name specified by us to you in Writing;

“Non-Inclusive Services” means the provision and remote maintenance of the Metering Equipment;

“Normal Business Hours” means the hours of 8am to 6pm during Working Days;

“Notice Address” means, for each Party, the address for notices for that Party as specified in the Proposal or such other address as that Party may notify the other from time to time in writing;

“Out of Hours Servicing” means any Site Visits made by us outside of Normal Business Hours;

“Party”, “Parties”

means either you or us, and Parties mean you and us;

“Personal Data” means as defined in the GDPR;

“Premises” means each of your premises as stated in your Proposal upon which the Meter Point(s) are located;

“Privacy Notice”

means our privacy notice which sets out:

a. where we might get data about you from;

b. why we might need it;

c. what we might do with the data (including who we might share it with);

d. the circumstances in which your data might be transferred abroad; and

e. how long we keep it for;

“Process”, “Processed” means as defined in the GDPR;

“Proposal”

means (i) the Initial Proposal; and (ii) any Additional Meter Point(s) Proposal(s);

“Sanctions List” means a consolidated list of persons, groups and entities which are the designated target of, or otherwise subject to, economic and non-economic sanctions imposed by Governments and/or multinational bodies;

 “Site Survey”

means a survey to determine the Metering Equipment installation requirements;

“Site Visit” means a visit made by us to the Premises to perform (i) maintenance, Energisation, De-energisation, Commissioning and/or replacement of the Metering Equipment; and/or (ii) a Site Survey;

“Start Date” means for or each Meter Point, the proposed date that the performance of the Contracted Services shall be commenced as specified in the Initial Proposal and/or any Additional Meter Point(s) Proposal; 

“Supplier” means a supplier of electricity licensed as an electricity supplier under the Act, who supplies electricity to Meter Points at your Premises;

 

“Third Party Intermediary”, “TPI”

means an energy broker or energy consultant who, pursuant to a contract with you, provides introductory services, price comparison services, energy contract advice and/or in some instances utility management to businesses;

“Total Contract Value” means 100% of the following aggregate charges which are payable from and including the Start Date to and including the End Date:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable);

“us”; “we”; “our” means E.ON Energy Solutions Limited, a company incorporated under the laws of England and Wales with registered company number 03407430;

“VAT” means value added tax;

“Working Day” means any day other than a Saturday, Sunday, or bank holiday in England and Wales;

“Writing”; “Written” means writing sent or received by electronic communication;

“you”; “your” means the Party named as the customer in the Proposal.

1 Agreement Formation

1.1 The “Agreement” is the Agreement between us and you governing the rights and obligations of each Party in respect of the performance of Contracted Services in respect of the Metering Equipment at each of the Meter Point(s) specified in your Proposal. The Agreement comprises and incorporates:

1.1.1 your Proposal;

1.1.2 these General Terms and Conditions;

1.1.3 any other document, annex or appendix referred to in these General Terms and Conditions or your Proposal; and

1.1.4 any other terms and conditions agreed between us and recorded in Writing from time to time and expressed to be amending or supplementary to these General Terms and Conditions or the Agreement.

1.2 In the event of any conflict or inconsistency between your Initial Proposal, any Additional Meter Point(s) Proposal and these General Terms and Conditions, the following order of priority shall apply:

1.2.1 General Terms and Conditions;

1.2.2 any other document, annex or appendix referred to in these General Terms and Conditions or your Proposal;

1.2.3 Initial Proposal; and

1.2.4 Additional Meter Point(s) Proposal.

2 Commencement and duration

2.1 The Commencement Date of the Agreement is the date that we:

2.1.1 counter-sign the Initial Proposal; and

2.1.2 notify you in Writing of our acceptance of your offer.

2.2 The Agreement shall continue until the earlier of:

2.2.1 the End Date; and

2.2.2 the date upon which the Agreement is terminated by either Party in accordance with these General Terms and Conditions.

3 Pre-performance and performance conditions

3.1 Our obligation to perform the Contracted Services under your Agreement will commence on the later of:

3.1.1 the Commencement Date;

3.1.2 the Start Date; and

3.1.3 us being Appointed as Meter Operator in respect of each Meter Point(s).

3.2 Our obligation to perform the Contracted Services is conditional upon the representations and warranties given by you under Clause 4 being true and accurate. If we consider (acting reasonably) that such representations and warranties are not true and accurate, we shall not be obliged to perform the Contracted Services (but we may continue to charge you as if we had performed the Contracted Services) under your Agreement until we are satisfied that such representations and warranties are true and accurate.

3.3 Without prejudice to Clause 3.2 and without limiting any other rights we have as a matter of law, in respect of each Meter Point(s):

3.3.1 if (i) we are not the Appointed Meter Operator with effect from the Start Date; or (ii) we are De-Appointed at any time during the Agreed Service Period, then save where we are not Appointed or are De-Appointed solely due to our negligent act or omission:

(a) Where (i) above applies, we shall be entitled to terminate the Agreement in accordance with Clause 15.3.1 (Our Termination Rights); and/or

(b) Where (ii) applies and we are not re-Appointed as Meter Operator within 5 (five) Working Days of us receiving the relevant De-Appointment Notification, we shall be entitled to terminate the Agreement in accordance with Clause 15.3.1 (Our Termination Rights).

3.3.2 if in our reasonable opinion you have failed to comply with Clause 4.1.4 (accommodation for Metering Equipment), and as a result of such failure we determine that we need to repair or replace the Metering Equipment (or any part thereof), we may recover from you as a debt any loss, damage, cost or expense that we incur in respect of any repair or replacement of the Metering Equipment under this Clause 3.3.2.

4 Representations and warranties

4.1 You represent and warrant that:

4.1.1 Your Supplier has Appointed us as Meter Operator in respect of each Meter Point(s) by the Start Date (save where we are not Appointed or are De-Appointed due to our negligent act or omission);

4.1.2 Each Meter Point(s) is connected to the Network or shall be connected to the Network by no later than the Start Date;

4.1.3 you are the owner or occupier of the Premises;

4.1.4 by no later than the Start Date you shall have provided to our satisfaction suitable and safe accommodation for the Metering Equipment;

4.1.5 you are not and will not be for the duration of the Agreement, a person on a Sanctions List or controlled by a person on a Sanctions List; and

4.1.6 where you are a corporate entity (such as a limited company or limited liability partnership), you are duly organised and validly existing under the laws of your jurisdiction of organisation or incorporation, you have the power to enter into the Agreement and have obtained all necessary internal authorisations and approvals to enter into and perform your obligations under the Agreement and for your relevant representative to execute the Agreement on your behalf.

5 Your interest in the Premises

5.1 You must notify us immediately in Writing if, at any time during the Agreement, there is any change to your ownership and/or occupation of the Premises.

5.2 Where you cease to be the owner or occupier of a Premises:

5.2.1 you must give us as much notice as possible and provide us with your new address and the details of the new owner or occupier of the Premises; and

5.2.2 we shall be entitled to terminate the Agreement in respect of any Meter Point(s) that relate(s) to a Premises that you cease to own or occupy in accordance with Clause 15.3.1 (Our Termination Rights), save that the Agreement shall continue in respect of any Meter Point(s) that relate to Premises that you continue to own or occupy.

6 Access

6.1 You shall, at your cost, provide us (and our employees, representatives and subcontractors) with safe and reasonable access to the Meter Point(s) and/or Metering Equipment at all times. You shall not obstruct access to a Meter Point(s) and/or the Metering Equipment at any time and you shall ensure that, where access to a Meter Point(s) and/or the Metering Equipment requires a key, accompaniment by you or your representative or any other form of assistance, access to the Meter Point(s) and/or the Metering Equipment shall not be unduly restricted or delayed. If we (or our employees, representatives and subcontractors) are unable to gain safe and reasonable access to a Meter Point(s) and/or the Metering Equipment at any time:

6.1.1 we shall pass through to you any additional costs incurred by us as a result of such failure; and

6.1.2 we shall not be obliged to perform the Contracted Services under your Agreement until we are given such access.

7 Provision of the Contracted Services

7.1 Where you have an All-Inclusive Plan, subject to the provisions in these General Terms and Conditions and your payment of the All-Inclusive Charges we agree to perform the All-Inclusive Services for the Agreed Service Period.

7.2 Where you have a Non-Inclusive Plan, subject to the provisions in these General Terms and Conditions and your payment of the Non-Inclusive Charges and the Additional Charges, we agree to perform the Non-Inclusive Services and any Additional Services for the Agreed Service Period.

7.3 We shall perform the Contracted Services in accordance with Good Industry Practice, applicable Codes of Practice and the Balancing and Settlement Code to the extent permitted by law, in place of all implied terms, conditions, warranties and guarantees.

7.4 Time of delivery of the Contracted Services is not of the essence. We shall use reasonable endeavours to keep to any times and dates that are set out in the Agreement including the Start Date, but these times and dates are approximate estimates only and we shall not be liable for failure to comply with them.

7.5 You agree that you have no title in the Metering Equipment and you shall not (and you shall not allow any person to) sell, loan, hire out, transfer, assign, charge or create a lien over the Metering Equipment.

7.6 Irrespective of whether you have an All-Inclusive Plan or a Non-Inclusive Plan, where we:

7.6.1 have Notified you of our intention, and received your agreement, to visit the Premises in order to carry out a Site Visit and we are not permitted to attend the Premises as agreed (“Abortive Site Visit”); and/or

7.6.2 carry out any Out of Hours Servicing,

we may charge you additional costs and recover from you as a debt any loss, cost or expense we incur as a result of any such Abortive Site Visit and/or Out of Hours Servicing.

8 Your general obligations

8.1 You shall provide us with such information as we may reasonably require and undertake all necessary actions to allow the Contracted Services to be performed in accordance with the Agreement.

8.2 You shall not hinder, delay or prevent the performance of the Contracted Services and shall inform us of all relevant information relating to the Premises and/or Meter Point(s) including but not limited to any health and safety issues before the Start Date. You shall also notify us in Writing of any issues relating to the Premises and/or Meter Point(s) that continue or arise after the Start Date which may affect the performance of the Contracted Services. To the extent that you hinder, delay or prevent the performance of the Contracted Services we may recover from you as a debt any loss, damage, cost or expense that we incur as a result.

8.3 You shall notify us and your Supplier immediately if you believe there has been theft of, damage to or interference with the Metering Equipment under the Agreement. You agree to provide us with all information in relation to any such theft, damage or interference as we may reasonably require. If you damage or interfere with any Metering Equipment, we may:

8.3.1 immediately terminate your Agreement in accordance with Clause 15.3.1 (Our Termination Rights); and/or

8.3.2 recover from you (on an indemnity basis) all costs, losses, expenses and liabilities reasonably incurred by us as a result of such damage, interference, interruption and/or termination.

8.4 If we discover any theft of, damage to or interference with the Metering Equipment we shall notify you and your Supplier in Writing as soon as reasonably practicable.

8.5 You shall provide and maintain to our satisfaction suitable and safe accommodation for the Metering Equipment. If you fail to comply with this Clause 8.5, and as a result of such failure we determine that we need to repair or replace the Metering Equipment (or any part thereof), we may recover from you as a debt any loss, damage, cost or expense that we incur in respect of any repair or replacement of the Metering Equipment under this Clause 8.5.

9 Letters of Authority

9.1 Where you wish to authorise a TPI to act on your behalf in connection with the Agreement, then prior to the Commencement Date:

9.1.1 you must have provided to us and such TPI with a valid LOA in a form and substance satisfactory to us, which shall allow us to provide information to the TPI in relation to you and the Agreement; and

9.1.2 we must have confirmed at our sole discretion that either we have or will have a valid agreement in place with such TPI or are otherwise willing to deal with such TPI.

9.2 Where we have received a valid and satisfactory LOA in accordance with Clause 9.1:

9.2.1 we shall provide the TPI with the information specified in the LOA and which is reasonably requested and not otherwise readily available to you or the TPI upon their request;

9.2.2 we shall act on the instructions of the TPI in connection with the Agreement;

9.2.3 we shall otherwise deal with and communicate with the TPI in relation to the Agreement in accordance with the terms of such LOA;

9.2.4 You agree that we may contact you at any time to confirm the validity and scope of a LOA. Where we are unable to confirm this with you, you agree that we may not provide the relevant TPI with any further information or otherwise deal with such TPI in relation to the Agreement or your payment history until we have been able to confirm the validity and scope of a LOA with you;

9.2.5 if you wish to amend or terminate the LOA you must notify us in Writing immediately. We will amend how we deal with, or, if applicable, cease to deal with, the TPI as soon as reasonably practicable after receiving any such notice. If you or the TPI become insolvent, we will deem any relevant LOA to have been terminated; and

9.2.6 you acknowledge and agree that you are and will be legally bound by the actions of the TPI and will take all necessary actions required to ratify the actions of the TPI.

9.3 If you have provided a TPI with a LOA and, in the circumstances where we have an agreement with such TPI, we terminate such agreement, or we otherwise determine (acting reasonably) that we are no longer willing to deal with such TPI, we may, at our sole discretion, decide not to provide the TPI with any further information or otherwise deal with such TPI in relation to the Agreement or your payment history and shall as soon as reasonably practicable notify you of such decision.

10 Charges, additional costs and payment terms

10.1 Credit Terms

10.1.1 At any time prior to the Commencement Date, or during this Agreement, we may request and obtain a credit assessment on you from a Credit Bureaux.

10.1.2 At any time prior to the Commencement Date, or during this Agreement, we may demand a security deposit, bank guarantee and/or parent/cross company guarantee in such form, from such person and/or in such amount as we consider appropriate in the circumstances. You agree that where any deposit and/or guarantee is requested in accordance with this Clause 10.1, you shall provide us with this by the date that we specify and the conditions of Clause 10.2 and/or 10.3(as applicable) shall apply. Failure to comply with such request in accordance with this Clause 10.1.2 shall be deemed a material breach of this Agreement for the purposes of Clause 15.3.1(d) and allow us to terminate under that Clause.

10.1.3 If, at any time during this Agreement, your credit risk status (or the credit risk status of any person that has provided a guarantee under Clause 10.1) deteriorates to any degree as deemed by us and/or as reported by one (1) or more Credit Bureaux as unacceptable, or your account with us becomes overdue due to non-payment of invoice(s) in accordance with Clause 10.4.3, we may:

(a) demand immediate payment of all overdue invoice(s) (where invoices are disputed Clause 10.6 shall apply); and/or

(b) on sending a Written notification to you, amend your payment terms immediately; and/or

(c) demand completion and return of a Direct Debit mandate form and payment strictly by Direct Debit; and/or

(d) demand a security deposit and/or other form of security and/or guarantee, which you shall provide us with by the date specified and the conditions of Clauses 10.2 and/or 10.3 (as applicable) shall apply.

Failure to meet any of the above conditions in this Clause 10.1 shall be deemed a material breach and we may terminate this Agreement and Clause 16 shall apply.

10.2 Security Deposits

10.2.1 Where requested and received by cleared funds in accordance with Clause 10.1, the security deposit will be held by us on trust for you on terms that it may be used to offset overdue payments from you. In the event that a receiver, liquidator, administrator or administrator receiver is appointed by or over us or any of our assets and this Agreement is terminated, you will be entitled to the return of the security deposit having first offset any overdue payment.

10.2.2 We shall be entitled to use all or part of the security deposit to offset overdue payments from you and if we do so we shall request a further security deposit to be paid to us within ten (10) Working Days of the date of our notification to you. Where the security deposit has been used and not replaced, we may also terminate this Agreement in which case the conditions of Clause 16 shall apply.

10.2.3 On the expiry or earlier termination of the Agreement we shall repay you the unused balance of the security deposit with interest at the Barclays Business Premium Bank Rate, provided that:

(a) we are no longer the Appointed Meter Operator for any of the Meter Point(s); and

(b) all amounts due to us have been paid in full.

10.3 Guarantees

10.3.1 Where we have requested a guarantee in accordance with Clause 10.1 and have received this from a person and in a format acceptable to us, the bank guarantee or parent/cross company guarantee may be called or part-called in the event of late payment by you of any invoices issued in respect of this Agreement. In addition to calling on the guarantee we may also terminate this Agreement in which case the conditions of Clause 16 shall apply.

10.4 Payment

10.4.1 In respect of each Contract Year (or pro-rated Contract Year as applicable), or as specified in your Proposal and in consideration of us performing the Contracted Services you agree to pay and we shall be entitled to invoice you for the Charges in respect of the Contracted Services, any additional costs payable by you in accordance with these General Terms and Conditions and any tax (including VAT), levy, duty or other impositions in accordance with any legislation and/or Codes of Practice.

10.4.2 You acknowledge that all Charges are exclusive of VAT, which shall be charged to you at the prevailing rate.

10.4.3 You agree to pay our invoices by cleared funds within 21 days of the date of the invoice or as agreed in your Proposal (the “Due Date”). Any credit owed to you shall be applied to your account as soon as reasonably practicable.

10.4.4 You acknowledge and agree that the Charges may include commission we have paid to a TPI instructed by you to act on your behalf.

10.4.5 Payments by credit card may only be made at our sole discretion and any such payment shall not affect your agreed payment terms as shown in the Proposal and/or these General Terms and Conditions.

10.4.6 You may not deduct or set off any payments to be made under the Agreement against any amounts due from us, except where we have issued a credit to you. We may set off any amounts received from you, or owing to you, against any amounts under any other agreement between us.

10.5 Failure to pay

10.5.1 If the Proposal provides for payment by Direct Debit and you fail to provide, or you cancel a Direct Debit mandate or your bank fails to honour a transfer we may:

(a) terminate your Agreement in accordance with Clause 15.3.1 (Our Termination Rights);

(b) suspend performance of the Contracted Services;

(c) change your payment method, including demand completion and return of a Direct Debit mandate form and payment strictly by Direct Debit for the remainder of your Agreement;

(d) amend your invoicing and/or payment terms;

(e) demand a security deposit in accordance with Clause 10.1.3 (d);

(f) tell Credit Bureaux, which can affect your credit rating; and/or

(g) charge you for any reasonable costs we have incurred as a result of your failure to pay.

10.5.2 If, following the Due Date any amount remains unpaid by you, we may charge you (i) interest in respect of any amount remaining unpaid at 8% above the Bank of England Base Rate; and/or (ii) an amount up to £100 (one hundred pounds) for costs incurred by us in respect of such late payment.

10.6 Disputing an invoice

If you reasonably dispute any amount invoiced by us under the Agreement you must notify us immediately and we will work with you to resolve the dispute as soon as reasonably practicable. If we cannot resolve the dispute prior to the Due Date and we accept that the dispute is a bona fide dispute you shall pay to us any undisputed part of the invoice in accordance with Clause 10.4. After an agreement is reached between us in relation to the dispute or the dispute has been determined in accordance with Clauses 21.14 and 21.15, any amount payable shall be paid within seven (7) Working Days (together with interest accrued in respect of the amount in accordance with Clause 10.5.2) and any amount payable by us to you will be credited to your account (together with, at our discretion, interest at Barclays Business Premium Bank Rate from time to time).

10.7 Invoicing errors and reconciliation

If at any time we discover that any invoice we have sent to you was inaccurate we shall submit a revised invoice when it is reasonably practicable to do so including but not limited to after accurate information becomes available and in such event you shall pay such invoice in accordance with Clause 10.4.

11 Variations

11.1 Except as expressly provided for in these General Terms and Conditions, your Agreement may only be varied by an agreement in Writing signed by both Parties.

11.2 Notwithstanding any other provision in these General Terms and Conditions, we may vary your Agreement and/or pass through to you any costs, losses, expenses or liabilities incurred by us (directly or indirectly) as a result of or in connection with:

11.2.1 information provided by you or a TPI (where applicable) being incorrect, false or incomplete;

11.2.2 any changes made by you or any third party to your Meter Point(s) and/or the Metering Equipment after the Commencement Date;

11.2.3 any new, change in or repeal of law (including legislation and court judgments), industry agreements or the interpretation, application or enforcement thereof;

11.2.4 any new or increased charge introduced by or resulting from a decision, determination or ruling by the Authority, any other government body or competent authority or a third party (or a legal challenge thereto);

11.2.5 any directions or requirements of the Secretary of State under the Act or any other legislation or regulation;

11.2.6 the imposition of a requirement for an additional authorisation, requirement, consent, permission, approval, resolution, license, or registration, by the Authority or any other government body or competent authority;

11.2.7 the change in the membership status of the United Kingdom following service of notice on the European Council by the UK Government of its decision under Article 50 of the Treaty on European Union to withdraw from membership of the European Union, and/or as a consequence of any withdrawal agreement subsequently reached between the UK Government and the European Union; or

11.2.8 or otherwise as expressly provided for elsewhere in these General Terms and Conditions or any documents referred to herein.

12 Additional Meter Point(s)

12.1 Additional Meter Point(s) Requests

12.1.1 If you would like us to perform any Contracted Services in respect of Metering Equipment at any Additional Meter Point(s), you shall first notify us in Writing with the following details:

(a) address of the Premises to which the Additional Meter Point(s) relate(s);

(b) date upon which you wish us to commence performance of the Contracted Services in respect of each Additional Meter Point(s);

(c) which Contracted Services you require; and

(d) complete and accurate information (including technical details) of:

(i) any Metering Equipment already in existence;

(ii) the Authorised Supply Capacity of the Additional Meter Point(s); and

(iii) Code(s) of Practice applicable to the Additional Meter Point(s).

12.1.2 Where any Contracted Services in respect of Additional Meter Point(s) are proposed by you pursuant to Clause 12.1 (Additional Meter Point(s) Requests), we shall, within 5 (five) Working Days of receipt of such proposal, provide you with our Additional Meter Point(s) Proposal in respect of such Additional Meter Point(s). We shall be entitled to decline to submit an Additional Meter Point(s) Proposal for any reason.

12.2 Additional Meter Point(s) Proposal 

12.2.1 An Additional Meter Point(s) Proposal shall comprise a written statement setting out:

(a) the Contracted Services proposed in respect of the Additional Meter Point(s) (“Additional Meter Point(s) Services”);

(b) the charges for the Contracted Services in respect of the Additional Meter Point(s) (“Additional Meter Point(s) Charges”); and

(c) the proposed Start Date of the Additional Meter Point(s) Services.

12.2.2 Where we have provided an Additional Meter Point(s) Proposal to you in accordance with Clause 12.2 then within 5 (five) Working Days of receipt of the Additional Meter Point(s) Proposal you shall notify us that:

(a) you agree with the Additional Meter Point(s) Proposal and we shall carry out and perform the Additional Meter Point(s) Services in accordance with the Additional Meter Point(s) Proposal and you shall pay the Additional Meter Point(s) Charges in accordance with Clause 10.4; or

(b) you reject the Additional Meter Point(s) Proposal and do not wish to procure the Additional Meter Point(s) Services on any terms whether from us or any third party.

13 Liabilities

13.1 Nothing in the Agreement shall exclude liability for death, fraud or personal injury resulting from the negligence of either Party.

13.2 Subject to Clause 13.3, our maximum aggregate liability in contract, tort or otherwise (including any liability for any negligent act or omission) howsoever arising out of or in connection with the Agreement is limited to twice the Total Contract Value.

13.3 Subject to Clause 13.4 and 13.6, if we have been negligent or have failed to comply with the Agreement and that negligence or failure directly results in physical damage to your Premises our maximum aggregate liability to you shall be limited to £250,000 (two hundred and fifty thousand pounds).

13.4 For the avoidance of doubt, we shall only be liable to you for physical damage to your Premises which was reasonably foreseeable, at the time of entry into the Agreement, as a likely result of a breach. We shall not be liable for any damage to your Premises which was beyond our reasonable control howsoever caused.

13.5 Except in respect of your liability to pay the Charges and the Early Termination Charge (where applicable) and where otherwise expressly provided, neither Party shall be liable to the other Party, under contract or otherwise, for direct or indirect loss of use, revenue, profit, contract or goodwill or for any special, consequential or indirect loss or damage of any nature, or for any liability of the other Party to any other person.

13.6 We shall not be responsible for, nor shall we have any liability to you whatsoever for any losses, costs, expenses, liabilities or additional charges caused by the acts or omissions of any third party.

14 Force Majeure

14.1 Neither party shall be liable to the other for failure to fulfil their obligations under the Agreement to the extent that the performance of the affected Party is prevented or delayed due to Force Majeure. The affected Party shall notify the other in Writing as soon as reasonably practicable of the Force Majeure event and take all reasonable steps to mitigate its effects. A further notification shall be issued to the other Party immediately when the circumstances of Force Majeure end.

14.2 If the effects of Force Majeure continue for a period of three (3) Months, the affected Party will further notify the other Party in Writing and the unaffected Party may terminate the Agreement in accordance with Clause 15.2.1 (c) (Your termination rights) or 15.3.2 (Our termination rights) as applicable.

15 Termination

15.1 Termination: General

15.1.1 The Parties acknowledge and agree that where the Agreement is terminated in respect of any single Meter Point(s) in accordance with these General Terms and Conditions:

(a) the Agreement shall continue in full force and effect in respect of the remaining Meter Point(s); and

(b) we shall proportionately adjust the total Charges for the Contracted Services in respect of the remaining Meter Point(s).

15.2 Your termination rights

15.2.1 You may terminate your Agreement immediately in respect of one or more Meter Point(s) upon giving us Written notice:

(a) if we commit a material breach of our obligations under the Agreement and (if such breach is remediable) we fail to remedy that breach within a period of 10 (ten) Working Days after receipt of notice in Writing requiring us to do so;

(b) if we are the subject of an Insolvency Event; or

(c) in the circumstances described in Clause 14.2 (Force Majeure) by giving us thirty (30) days’ Written notice.

15.2.2 Where you have provided notice to terminate your Agreement under this Clause 15.2, the provisions of Clause 16.1 shall apply.

15.3 Our termination rights

15.3.1 We may, at any time, terminate your Agreement immediately in respect of one or more Meter Point(s) by giving you Written notice:

(a) in the circumstances described in Clause 3.3.1 (Pre-performance and performance conditions), 5.2.2 (Your interest in the Premises), 8.3.1 (Your general obligations- damage to Metering Equipment), 10.1.3 (Credit Terms), 10.2.2 (Security Deposit), or 10.5.1

(a) (Failure to pay);

(b) if you are the subject of an Insolvency Event;

(c) if any of the representations and warranties given under Clause 4 are inaccurate or untrue;

(d) if you are in material breach of any of your obligations under the Agreement;

(e) you (or your Third Party Intermediary) have provided us with false, incomplete and/or inaccurate information; or

(f) as otherwise expressly provided for in these General Terms and Conditions or any document referred to herein.

Where we have provided notice to terminate your Agreement under this Clause 15.3.1 the provisions of Clause 16 (Consequences of Termination) shall apply.

15.3.2 We may terminate your Agreement immediately in respect of one or more Meter Point(s) by giving you Written notice in the circumstances described in Clause 14.2 (Force Majeure). Where we have provided notice to terminate your Agreement under this Clause 15.3.2, the provisions of Clause 16.1 shall apply.

16 Consequences of Termination

16.1 On any termination of the Agreement (including where we remain the Appointed Meter Operator and/or Meter Asset Provider for any Meter Point(s):

16.1.1 we shall be entitled to cease performance of the Contracted Services;

16.1.2 you must immediately pay to us all unpaid Charges and any other amounts that remain owing in respect of the period before or after the expiry (whether or not those Charges or other amounts have been invoiced);

16.1.3 we shall be entitled to De-energise any or all Meter Point(s) and remove the Metering Equipment or any part thereof as soon as reasonably practicable and;

16.1.4 we will be able to recover charges where our meter asset remains in use at the site(s) -these charges could be billed directly to you or the energy supplier who may pass these charges on to you.

16.2 Early Termination Charge

16.2.1 If the Agreement is terminated by us in accordance with Clause 15.3.1 we may (without prejudice to any other legal remedies we may have in respect of such termination) require you to pay the Early Termination Charge.

16.3 Calculation of Early Termination Charge

16.3.1 Subject to Clause 16.3.2 the Early Termination Charge shall be calculated as:

(a) any outstanding amounts that have been invoiced for but not yet paid; and

(b) any and all Charges that would have fallen due had the Contracted Services been performed from the date of termination of the Agreement until the End Date.

16.3.2 Where the Agreement has been terminated in respect of any single Meter Point(s), we shall proportionately adjust the Early Termination Charge.

16.3.3 You agree that the Early Termination Charge is fair and reasonable in all respects and is a genuine pre-estimate of the likely losses which we would sustain in the event of termination of the Agreement in accordance with Clause 15.3.1.

17 Consequences of expiry

17.1 On expiry of the Agreement you must immediately pay to us all unpaid Charges and any other amounts that remain owing in respect of the period before the expiry (whether or not those Charges or other amounts have been invoiced) and provided that we are no longer the Appointed Meter Operator for any Meter Point(s):

17.1.1 we shall cease performance of the Contracted Services; and

17.1.2 we shall be entitled to De-energise any or all Meter Point(s) and remove the Metering Equipment or any part thereof as soon as reasonably practicable.

17.2 Upon expiry of the Agreement, where we remain the Appointed Meter Operator for any Meter Point(s), you shall pay the Deemed Rates in accordance with Clause 10.4.3 from the End Date to the earlier of the date that (i) we are De-Appointed as Meter Operator; or (ii) you enter into a new contract with us for the provision of the Contracted Services.

17.3 Subject to your payment of the Deemed Rates we shall continue to perform the Contracted Services in accordance with these General Terms and Conditions. If you fail to pay the Deemed Rates as they fall due, we shall be entitled to cease performance of the Contracted Services by giving you Written notice and Clause 17.1.2 shall apply.

17.4 You agree to give us all reasonable access to your Premises to allow us to exercise our rights in Clause 16.1.3 and 17.1.2.

17.5 Where we are De-Appointed in accordance with Clause 17.2 Clause 17.1 shall apply.

18 Survival

18.1 Notwithstanding the expiry or termination of the Agreement, the expiry or termination shall not have effect until the date on which the Parties have fully performed their rights and obligations under Clause 16 (Consequences of Termination) and Clause 17 (Consequences of Expiry).

18.2 The expiry or termination of this Agreement shall not affect any accrued rights or liabilities. Clauses 13 (Liabilities), 16 (Consequences of Termination), 17 (Consequences of Expiry), 19 (Information), 21 (Miscellaneous) and 22 (Interpretation), shall survive and remain in force following the date on which the expiry or termination of this Agreement has effect in accordance with Clause 18.1.

19 Information

19.1 Any information we provide to you (or your TPI where applicable) is solely for the purpose of the performance of your obligations under the Agreement only and you must not use any such information for any other purpose.

19.2 Subject to the rest of this Clause 19.2 and Clause 20 (Personal Data) neither Party shall disclose information relating to the Agreement without the prior Written consent of the other Party, except to comply with any relevant law or regulation or any request or direction from any Authority. Notwithstanding the foregoing, you agree that we may disclose any information relating to you or your Agreement:

(a) to any person who is the beneficiary of a LOA in accordance with Clause 9 (LOAs);

(b) to any person in order to allow us to perform our obligations under the Agreement;

(c) to any person to whom we may transfer the whole or substantially the whole of our business;

(d) to any bank, financial institution, rating agency or other finance provider to the extent required in relation to the financing (or potential financing) of our business activities;

(e) with Credit Bureau in order to exercise our rights under the Agreement;

(f) to other third parties to provide you with an agreed service;

(g) to any third party contracted by us to recover sums due to us and/or perform services on our behalf under this Agreement; and/or

(h) to organisations for the detection and prevention of crime.

Any data or information collected in connection with the performance of this Agreement may be retained by both Parties for at least six (6) years following the End Date.

20 Personal Data

20.1 If you provide any Personal Data to us under the Agreement, we will be the Data Controller. Our Data Protection Officer can be contacted at Newstead Court, Little Oak Drive, Annesley, Nottinghamshire NG15 0DR. We will Process your Personal Data in accordance with our Privacy notice, as amended from time to time, which can be found at www.eonenergy.com/privacy or by contacting us to request a paper copy.

20.2 You have a number of rights relating to the access to, and control of your data. These are also set out in our Privacy notice.

21 Miscellaneous

21.1 The Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements or understandings, whether written or oral, relating to the subject matter of the Agreement.

21.2 Each Party acknowledges and agrees that in entering the Agreement it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in the Agreement except in the case of fraudulent misrepresentation. Neither Party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Agreement.

21.3 Except for those expressly set out in the Agreement, all warranties, conditions, representations and undertakings (including any and all warranties, conditions, representations and undertakings implied by statute, common law or otherwise) are excluded to the fullest extent permitted by law.

21.4 The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same Agreement.

21.5 Termination or the ending of your Agreement shall not affect any rights or obligations which may have accrued prior to the date of termination or the end of your Agreement.

21.6 The Agreement is between you and E.ON Energy Solutions Limited. The General Terms and Conditions of your Agreement also apply where we act as agent of any of our group of companies and references to ‘we’, ‘us’ or ‘our’ shall include those other companies where appropriate.

21.7 You shall not transfer, novate or assign any of your rights or obligations under this Agreement without our prior Written consent, which we may withhold at our sole and absolute discretion. We may transfer or assign any or all of our rights or obligations under this Agreement without your consent.

21.8 No delay, neglect, or failure on the part of either Party in enforcing against the other Party any term or condition of this Agreement, or exercising any right under this Agreement, shall be or shall be deemed to be a waiver or in any way prejudice any right of that Party under this Agreement. Any waiver by either party of any of its rights under this Agreement must be in Writing and a waiver only applies to the specific breach expressly referred to in the waiver and shall not entitle any further breaches.

21.9 If any provision of the Agreement is declared invalid, unenforceable or illegal by the courts, the remaining provisions of the Agreement shall continue in full force and effect.

21.10 Any notice to be given under this Agreement by us to you shall be in Writing and delivered by hand or sent by email, recorded delivery or registered letter to the Notice Address (as applicable).

21.11 Internet communications are not always secure and we do not accept legal responsibility for any message sent electronically. You are responsible for verifying its authenticity before acting on the contents. Where we send electronic communication to you we cannot guarantee that they are virus-free and we do not take responsibility for virus checking.

21.12 Subject to Clause 21.6, any person who is not a Party to this Agreement shall not acquire or have any rights under this Agreement whether by virtue of the Contracts (Rights of Third Parties) Act 1999, or otherwise.

21.13 You may perform any of your obligations under the Agreement through any of your Affiliates. You acknowledge and agree that any act or omission of your Affiliate in relation to your rights or obligations under the Agreement shall be deemed to be an act or omission of you.

21.14 Each Party shall use reasonable endeavours to resolve a dispute. If the Parties are not able to agree a resolution or there is a failure to implement the resolution correctly, either Party may pursue any remedies that it may have under this Agreement or at law. The Agreement shall apply during any dispute resolution process.

21.15 Your Agreement (and any non-contractual obligations arising out of or in connection with it) shall be governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to determine disputes arising out of or in connection with your Agreement (including any non-contractual obligations). 

22 Interpretation and definitions

22.1 In the Agreement, where applicable and unless otherwise stated:

(a) references to the singular include references to the plural and vice versa;

(b) words denoting persons shall include a natural person, bodies corporate and unincorporated associations of persons and shall include permitted successors or assigns of such persons.

(c) headings are inserted for convenience only;

(d) references to any statute, statutory provision, statutory instrument, regulation or code include any amendments, extensions and re-enactments thereof;

(e) references to “including”, “includes” and “in particular” are illustrative only, and shall not limit the sense of the words preceding them and each of them shall be deemed to incorporate the expression “without limitation”; and

(f) a word importing one gender shall (where appropriate) include any other gender;

22.2 These definitions shall apply to the Agreement and have the corresponding meanings assigned to them:

Abortive Site Visit means as defined in Clause 7.6.1;

Accredited means a person who has a formal industry licence and/or accreditation of qualifications, systems and business processes;

Act means the Electricity Act 1989 as replaced, repealed or amended from time to time;

Additional Charges means, where you have a Non-Inclusive Plan, the charges for the Additional Services as specified in your Initial Proposal;

Additional Meter Point(s) means Meter Point(s) which were not included in your Initial Proposal and in respect of which you wish for us to provide Contracted Services;

Additional Meter Point(s) Charges means as defined in Clause 12.2.1 (b);

Additional Meter Point(s) Proposal means as defined in Clause 12.2.1 (Additional Meter Point(s) Proposal);

Additional Meter Point(s) Services means as defined in Clause 12.2.1 (a);

Additional Services means installation of the Metering Equipment and any Site Visits within Normal Business Hours;

Affiliate means, in relation to either Party, any “subsidiary”, any “holding company”, any subsidiary of such holding company, any “group undertaking”, any “subsidiary undertaking”, or any “parent undertaking” with each phrase having the same meaning as their respective definitions in sections 1159 to 1162 inclusive of the Companies Act 2006;

Agreement has the meaning given in Clause 1.1;

Agreed Service Period means in respect of each Meter Point(s), the period from and including the relevant Start Date to and including the earlier of (i) the End Date; or (ii) the date upon which the Agreement is terminated in accordance with these General Terms and Conditions;

All-Inclusive Charges means, where you have an All-Inclusive Plan, the charges for the All-Inclusive Services as specified in your Initial Proposal;

All-Inclusive Plan means the plan of that name specified by us to you in Writing;

All-Inclusive Services means:

(a) the provision (including where applicable installation) of the Metering Equipment;

(b) maintenance of the Metering Equipment; and

(c) Site Visits within Normal Business Hours.

Appointed means an Accredited person appointed to a role by following formal industry process including those roles and processes set out or referred to in industry agreements (Appoint and Appointment shall be interpreted accordingly);

Associated Telecommunications means the technology, data communication lines, network connections and telecommunications links and access from your meter to our data centres and that enables remote retrieval of data from your meter at the Meter Point(s), as is more particularly described in your Proposal, and as may be amended by us from time to time;

Authorised Supply Capacity means the total amount of electricity which may be consumed at a Meter Point(s) in any given period as agreed with the relevant Network Operator;

Authority means the Gas and Electricity Markets Authority (GEMA), the Office of Gas and Electricity Markets (Ofgem), Competition Markets Authority (CMA) or HMRC;

Balancing and Settlement Code means the code of that title and all related documents comprising a set of rules to which electricity market participants are required to conform, a copy of which can be found at elexon.co.uk;

Barclays Business Premium Bank Rate means as published on the Barclays website from time to time;

Charge; Charges; Charged means:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges;

(b) The Additional Charges; and

(c) any Additional Meter Point(s) Charges (where applicable);

Codes of Practice means the Code of Practice (CoPs) as defined by Elexon which detail the technical requirements for meters;

Commencement Date means as defined in Clause 2.1;

Commissioning means the process to ensure that the electricity flowing across a Meter Point(s) is accurately recorded by the associated Metering Equipment;

Contracted Services means, in respect of the Metering Equipment at each Meter Point(s):

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Services; and

(b) any Additional Meter Point(s) Services; or

(2) Where you have a Non-Inclusive Plan:

(a) the Non-Inclusive Services;

(b) any Additional Services; and

(c) any Additional Meter Point(s) Services

Contract Year means a period of 12 Months commencing on the Start Date and any anniversary thereof;

Credit Bureaux means an establishment which collects and compiles data on individuals or businesses in order to evaluate the financial stability of such individuals or businesses;

Data Controller means as defined in the GDPR;

De-Appointment Notification means in relation to an Appointed Meter Operator, the cessation or expiry for any reason of the Appointment and “De-Appointed” shall be construed accordingly;

De-Energisation means, in respect of the Metering Equipment or any part of it, the occurrence of any activity or the taking of any step which causes the Energisation of the Metering Equipment or the relevant part of it, as the case may be, to cease and “De-energise” shall be construed accordingly;

Deemed Rates means the rates and charges applicable for the ongoing provision of the Contracted Services being those equivalent to the Charges we apply from time to time for the provision of the Contracted Services for one Contract Year;

Direct Debit means a pre-authorised payment under which you authorise your bank to pay a fixed and/or a variable amount of money directly to us at regular intervals, as shown in the Proposal;

Due Date means as defined in Clause 10.4.3;

Early Termination Charge means as defined in Clause 16.3.1;

Elexon means an independent body that procures, manages and operates services and systems, which enable imbalance settlement of the wholesale electricity market and retail competition in electricity supply;

End Date means the end date specified in the Initial Proposal;

Energisation means the insertion of any fuse into the Metering Equipment so as to enable electricity to flow;

Force Majeure means an act of God, industrial action (except where solely restricted to employees of the Party claiming a force majeure event), an act of the public enemy or terrorist, war declared or undeclared, sabotage or act of vandalism, civil commotion, lightning, earthquake, hurricane, fire, storm, flood, drought, accumulation of snow or ice, explosion, exceptional breakage or accident to machinery or pipelines, governmental restraint, and any other cause which is beyond the reasonable control of the affected Party. Notwithstanding the foregoing, “Force Majeure” shall not include: any economic hardship, change in financial conditions or the inability or failure to pay any amount due under this Agreement;

GDPR means the EU General Data Protection Regulation (Regulation (EU) 2016/679), as may be amended, consolidated or re-enacted from time to time);

General Terms and Conditions means these General Terms and Conditions relating to the performance of the Contracted Services, as varied from time to time;

Good Industry Practice means, acting in a good and workmanlike manner and exercising a degree of skill, care and diligence, which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in providing services of the same size, type, scope and complexity as us under the Agreement and under the same or similar circumstances;

HMRC means HM Revenue and Customs;

Initial Proposal means our proposal, which includes our statement of Charges, the duration of the Agreement and any special conditions applicable to the performance of Contracted Services in respect of the Meter Point(s);

Insolvency Event means circumstances under which either Party:

(a) has a receiver or similar officer appointed over all or a material part of its assets or undertaking;

(b) passes a resolution for winding-up (other than a winding-up for, or in connection with, any solvent amalgamation or reconstruction) or a court makes an order to that effect or a court makes an order for administration (or any equivalent order in any jurisdiction);

(c) enters into any composition or arrangement with its creditors (other than relating to a solvent restructuring);

(d) ceases to carry on business;

(e) is unable to pay its debts as they become due in the ordinary course of business;

Letter of Authority; LOA means a letter, issued and signed by you, that authorises a TPI to act on your behalf in regarding the Agreement;

Metering Equipment means the meters, Associated Telecommunications, outstations, wiring and any other equipment necessary for the installation and operation of the foregoing;

Meter Operator means the party responsible for installation and maintenance of the Metering Equipment;

Meter Point; Meter Points means the particular location on the Premises where the Metering Equipment is to be provided or installed as set out in the Proposal or otherwise notified to us in Writing in a timely manner prior to the Start Date;

Month; Monthly; Months means a calendar month;

Network means the local electricity distribution network;

Network Operator means in respect of a Meter Point(s), the distribution network operator responsible for the operation of the Network;

Non-Inclusive Charges means the charges for the Non-Inclusive Services as specified in your Initial Proposal;

Non-Inclusive Plan means the plan of that name specified by us to you in Writing;

Non-Inclusive Services means the provision and remote maintenance of the Metering Equipment;

Normal Business Hours means the hours of 8am to 6pm during Working Days;

Notice Address means, for each Party, the address for notices for that Party as specified in the Proposal or such other address as that Party may notify the other from time to time in writing;

Out of Hours Servicing  means any Site Visits made by us outside of Normal Business Hours;

Party, Parties means either you or us, and Parties mean you and us;

Personal Data means as defined in the GDPR;

Premises means each of your premises as stated in your Proposal upon which the Meter Point(s) are located;

Privacy Notice means our privacy notice which sets out:

(a) where we might get data about you from;

(b) why we might need it;

(c) what we might do with the data (including who we might share it with);

(d) the circumstances in which your data might be transferred abroad; and

(e) how long we keep it for;

Process, Processed means as defined in the GDPR;

Proposal means (i) the Initial Proposal; and (ii) any Additional Meter Point(s) Proposal(s);

Sanctions List means a consolidated list of persons, groups and entities which are the designated target of, or otherwise subject to, economic and non-economic sanctions imposed by Governments and/or multinational bodies;

Site Survey means a survey to determine the Metering Equipment installation requirements;

Site Visit means a visit made by us to the Premises to perform (i) maintenance, Energisation, De-energisation, Commissioning and/or replacement of the Metering Equipment; and/or (ii) a Site Survey;

Start Date means for or each Meter Point(s), the proposed date that the performance of the Contracted Services shall be commenced as specified in the Initial Proposal and/or any Additional Meter Point(s) Proposal;

Supplier means a supplier of electricity licensed as an electricity supplier under the Act, who supplies electricity to Meter Point(s) at your Premises;

Third Party Intermediary, TPI means an energy broker or energy consultant who, pursuant to a contract with you, provides introductory services, price comparison services, energy contract advice and/or in some instances utility management to businesses;

Total Contract Value

means 100% of the following aggregate charges which are payable from and including the Start Date to and including the End Date:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable);

us; we; our means E.ON Energy Solutions Limited, a company incorporated under the laws of England and Wales with registered company number 03407430;

VAT means value added tax;

Working Day means any day other than a Saturday, Sunday, or bank holiday in England and Wales;

Writing; Written means writing sent or received by electronic communication;

you; your

means the Party named as the customer in the Proposal.

1 Agreement Formation

1.1 The “Agreement” is the Agreement between us and you governing the rights and obligations of each Party in respect of the performance of Contracted Services in respect of the Metering Equipment at each of the Meter Point(s) specified in your Proposal. The Agreement comprises and incorporates:

1.1.1 your Proposal;

1.1.2 these General Terms and Conditions;

1.1.3 any other document, annex or appendix referred to in these General Terms and Conditions or your Proposal; and

1.1.4 any other terms and conditions agreed between us and recorded in Writing from time to time and expressed to be amending or supplementary to these General Terms and Conditions or the Agreement.

1.2 In the event of any conflict or inconsistency between your Initial Proposal, any Additional Meter Point(s) Proposal and these General Terms and Conditions, the following order of priority shall apply:

1.2.1 General Terms and Conditions;

1.2.2 any other document, annex or appendix referred to in these General Terms and Conditions or your Proposal;

1.2.3 Initial Proposal; and

1.2.4 Additional Meter Point(s) Proposal.

2 Commencement and duration

2.1 The Commencement Date of the Agreement is the date that we:

2.1.1 counter-sign the Initial Proposal; and

2.1.2 notify you in Writing of our acceptance of your offer.

2.2 The Agreement shall continue until the earlier of:

2.2.1 the End Date; and

2.2.2 the date upon which the Agreement is terminated by either Party in accordance with these General Terms and Conditions.

3 Pre-performance and performance conditions

3.1 Our obligation to perform the Contracted Services under your Agreement will commence on the later of:

3.1.1 the Commencement Date;

3.1.2 the Start Date; and

3.1.3 us being Appointed as Data Collector and Data Aggregator in respect of each Meter Point(s).

3.2 Our obligation to perform the Contracted Services is conditional upon the representations and warranties given by you under Clause 4 being true and accurate. If we consider (acting reasonably) that such representations and warranties are not true and accurate, we shall not be obliged to perform the Contracted Services (but we may continue to charge you as if we had performed the Contracted Services) under your Agreement until we are satisfied that such representations and warranties are true and accurate.

3.3 Without prejudice to Clause 3.2 and without limiting any other rights we have as a matter of law, in respect of each Meter Point(s):

3.3.1 if (i) we are not the Appointed Data Collector and Data Aggregator with effect from the Start Date; or (ii) we are De-Appointed at any time during the Agreed Service Period, then save where we are not Appointed or are De-Appointed solely due to our negligent act or omission:

(i) Where (i) above applies, we shall be entitled to terminate the Agreement in accordance with Clause 15.3.1 (Our Termination Rights); and/or

(ii) Where (ii) applies and we are not re-Appointed as Data Collector and/or Data Aggregator within 5 (five) Working Days of us receiving the relevant De-Appointment Notification, we shall be entitled to terminate the Agreement in accordance with Clause 15.3.1 (Our Termination Rights).

4 Representations and warranties

4.1 You represent and warrant that:

4.1.1 Your Supplier has Appointed us as Data Collector and Data Aggregator in respect of each Meter Point(s) by the Start Date (save where we are not Appointed or are De-Appointed due to our negligent act or omission);

4.1.2 Each Meter Point(s) is connected to the Network or shall be connected to the Network by no later than the Start Date;

4.1.3 The Metering Equipment complies with the Act;

4.1.4 the Associated Telecommunications in respect of each Meter Point(s) are in good working order;

4.1.5 you are the owner or occupier of the Premises;

4.1.6 you are not and will not be for the duration of the Agreement, a person on a Sanctions List or controlled by a person on a Sanctions List; and

4.1.7 where you are a corporate entity (such as a limited company or limited liability partnership), you are duly organised and validly existing under the laws of your jurisdiction of organisation or incorporation, you have the power to enter into the Agreement and have obtained all necessary internal authorisations and approvals to enter into and perform your obligations under the Agreement and for your relevant representative to execute the Agreement on your behalf.

5 Your interest in the Premises

5.1 You must notify us immediately in Writing if, at any time during the Agreement, there is any change to your ownership and/or occupation of the Premises.

5.2 Where you cease to be the owner or occupier of a Premises:

5.2.1 you must give us as much notice as possible and provide us with your new address and the details of the new owner or occupier of the Premises; and

5.2.2 we shall be entitled to terminate the Agreement in respect of any Meter Point(s) that relate(s) to a Premises that you cease to own or occupy in accordance with Clause 15.3.1 (Our Termination Rights), save that the Agreement shall continue in respect of any Meter Point(s) that relate to Premises that you continue to own or occupy.

6 Access

6.1 You shall, at your cost, provide us (and our employees, representatives and subcontractors) with safe and reasonable access to the Meter Point(s) and/or Metering Equipment at all times. You shall not obstruct access to a Meter Point(s) and/or the Metering Equipment at any time and you shall ensure that, where access to a Meter Point(s) and/or the Metering Equipment requires a key, accompaniment by you or your representative or any other form of assistance, access to the Meter Point(s) and/or the Metering Equipment shall not be unduly restricted or delayed. If we (or our employees, representatives and subcontractors) are unable to gain safe and reasonable access to a Meter Point(s) and/or the Metering Equipment at any time:

6.1.1 we shall pass through to you any additional costs incurred by us as a result of such failure; and

6.1.2 we shall not be obliged to perform the Contracted Services under your Agreement until we are given such access.

7 Provision of the Contracted Services

7.1 Where you have an All-Inclusive Plan, subject to the provisions in these General Terms and Conditions (including but not limited to Clause 7.3) and your payment of the All-Inclusive Charges we agree to perform the All-Inclusive Services for the Agreed Service Period.

7.2 Where you have a Non-Inclusive Plan, subject to the provisions in these General Terms and Conditions and your payment of the Non-Inclusive Charges and the Additional Charges, we agree to perform the Non-Inclusive Services and any Additional Services for the Agreed Service Period.

7.3 Where you have an All-Inclusive Plan and we determine at any time in our sole discretion that (i) there is no appointed Meter Operator; and/or (ii) the Associated Telecommunications is not in existence or not in good working order, and as a result we are required to carry out any Hand Held Reads, we may recover from you as a debt any loss, cost or expense we incur in respect of any such Hand Held Reads that we carry out.

7.4 We shall perform the Contracted Services in accordance with Good Industry Practice, applicable Codes of Practice and the Balancing and Settlement Code to the extent permitted by law, in place of all implied terms, conditions, warranties and guarantees.

7.5 Time of delivery of the Contracted Services is not of the essence. We shall use reasonable endeavours to keep to any times and dates that are set out in the Agreement including the Start Date, but these times and dates are approximate estimates only and we shall not be liable for failure to comply with them.

8 Your general obligations

8.1 You shall provide us with such information as we may reasonably require and undertake all necessary actions to allow the Contracted Services to be performed in accordance with the Agreement.

8.2 You shall not hinder, delay or prevent the performance of the Contracted Services and shall inform us of all relevant information relating to the Premises and/or Meter Point(s) including but not limited to any health and safety issues before the Start Date. You shall also notify us in Writing of any issues relating to the Premises and/or Meter Point(s) that continue or arise after the Start Date which may affect the performance of the Contracted Services. To the extent that you hinder, delay or prevent the performance of the Contracted Services we may recover from you as a debt any loss, damage, cost or expense that we incur as a result.

8.3 You shall notify us and your Supplier immediately if you believe there has been theft of, damage to or interference with the Metering Equipment under the Agreement. You agree to provide us with all information in relation to any such theft, damage or interference as we may reasonably require. If you damage or interfere with any Metering Equipment, we may:

8.3.1 immediately terminate your Agreement in accordance with Clause 15.3.1 (Our Termination Rights); and/or

8.3.2 recover from you (on an indemnity basis) all costs, losses, expenses and liabilities reasonably incurred by us as a result of such damage, interference, interruption and/or termination.

8.4 If we discover any theft of, damage to or interference with the Metering Equipment we shall notify you and your Supplier in writing as soon as reasonably practicable.

8.5 To the extent that you own the Metering Equipment at any Meter Point(s) under the Agreement, you shall ensure that at all times the Metering Equipment at that Meter Point(s) complies with the Act, and is installed and properly maintained in accordance with all applicable law and industry codes. If we own the Metering Equipment at a Meter Point(s), we shall ensure that at all times the Metering Equipment at that Meter Point(s) complies with the Act, and is installed and properly maintained in accordance with all applicable law and industry codes.

8.6 Where we provide Optimum as part of the Contracted Services the Parties agree to comply with the terms of Annex 1.

8.7 Where you suspect that the Half Hourly Data Collected by us may be inaccurate you shall notify your Supplier immediately and Clause 13.7 (Liabilities) shall apply.

9 Letters of Authority

9.1 Where you wish to authorise a TPI to act on your behalf in connection with the Agreement, then prior to the Commencement Date:

9.1.1 you must have provided to us and such TPI with a valid LOA in a form and substance satisfactory to us, which shall allow us to provide information to the TPI in relation to you and the Agreement; and

9.1.2 we must have confirmed at our sole discretion that either we have or will have a valid agreement in place with such TPI or are otherwise willing to deal with such TPI.

9.2 Where we have received a valid and satisfactory LOA in accordance with Clause 9.1:

9.2.1 we shall provide the TPI with the information specified in the LOA and which is reasonably requested and not otherwise readily available to you or the TPI upon their request;

9.2.2 we shall act on the instructions of the TPI in connection with the Agreement;

9.2.3 we shall otherwise deal with and communicate with the TPI in relation to the Agreement in accordance with the terms of such LOA;

9.2.4 you agree that we may contact you at any time to confirm the validity and scope of a LOA. Where we are unable to confirm this with you, you agree that we may not provide the relevant TPI with any further information or otherwise deal with such TPI in relation to the Agreement or your payment history until we have been able to confirm the validity and scope of a LOA with you;

9.2.5 if you wish to amend or terminate the LOA you must notify us in Writing immediately. We will amend how we deal with, or, if applicable, cease to deal with, the TPI as soon as reasonably practicable after receiving any such notice. If you or the TPI become insolvent, we will deem any relevant LOA to have been terminated; and

9.2.6 you acknowledge and agree that you are and will be legally bound by the actions of the TPI and will take all necessary actions required to ratify the actions of the TPI.

9.3 If you have provided a TPI with a LOA and, in the circumstances where we have an agreement with such TPI, we terminate such agreement, or we otherwise determine (acting reasonably) that we are no longer willing to deal with such TPI, we may, at our sole discretion, decide not to provide the TPI with any further information or otherwise deal with such TPI in relation to the Agreement or your payment history and shall as soon as reasonably practicable notify you of such decision.

10 Charges, additional costs and payment terms

10.1 Credit Terms

10.1.1 At any time prior to the Commencement Date, or during this Agreement, we may request and obtain a credit assessment in relation to you from a Credit Bureaux.

10.1.2 At any time prior to the Commencement Date, or during this Agreement, we may demand a security deposit, bank guarantee and/or parent/cross company guarantee in such form, from such person and/or in such amount as we consider appropriate in the circumstances. You agree that where any deposit and/or guarantee is requested in accordance with this Clause 10.1.1, you shall provide us with this by the date that we specify and the conditions of Clause 10.2 and/or 10.3 (as applicable) shall apply. Failure to comply with such request in accordance with this Clause 10.1.2 shall be deemed a material breach of this Agreement for the purposes of Clause 15.3.1 (d) and allow us to terminate in accordance with that Clause.

10.1.3 If, at any time during this Agreement, your credit risk status (or the credit risk status of any person that has provided a guarantee under Clause 10.1.1) deteriorates to any degree as deemed by us and/or as reported by one (1) or more Credit Bureaux as unacceptable, or your account with us becomes overdue due to non-payment of invoice(s) in accordance with Clause 10.4.3, we may:

(a) demand immediate payment of all overdue invoice(s) (where invoices are disputed Clause 10.6 shall apply); and/or

(b) on sending a Written notification to you, amend your payment terms immediately; and/or

(c) demand completion and return of a Direct Debit mandate form and payment strictly by Direct Debit; and/or

(d) demand a security deposit and/ or other form of security and/or guarantee, which you shall provide us with by the date specified and the conditions of Clauses 10.2and/or 10.3 (as applicable) shall apply. Failure to meet any of the above conditions in this Clause 10.1 shall be deemed a material breach and we may terminate this Agreement and Clause 16 shall apply.

10.2 Security Deposits

10.2.1 Where requested and received by cleared funds in accordance with Clause 10.1, the security deposit will be held by us on trust for you on terms that it may be used to offset overdue payments from you. In the event that a receiver, liquidator, administrator or administrator receiver is appointed by or over us or any of our assets and this Agreement is terminated, you will be entitled to the return of the security deposit having first offset any overdue payment.

10.2.2 We shall be entitled to use all or part of the security deposit to offset overdue payments from you and if we do so we shall request a further security deposit to be paid to us within ten (10) Working Days of the date of our notification to you. Where the security deposit has been used and not replaced we may also terminate this Agreement in which case the conditions of Clause 16 shall apply.

10.2.3 On the expiry or earlier termination of the Agreement we shall repay you the unused balance of the security deposit with interest at the Barclays Business Premium Bank Rate, provided that:

(a) we are no longer the Appointed Data Collector and Data Aggregator for any of the Meter Point(s); and

(b) all amounts due to us have been paid in full.

10.3 Guarantees

10.3.1 Where we have requested a guarantee in accordance with Clause 10.1.1, and have received this from a person and in a format acceptable to us, the bank guarantee or parent/cross company guarantee may be called or part-called in the event of late payment by you of any invoices issued in respect of this Agreement. In addition to calling on the guarantee we may also terminate this Agreement in which case the conditions of Clause 16 shall apply.

10.4 Payment

10.4.1 In respect of each Contract Year (or pro-rated Contract Year as applicable), or as specified in your Proposal and in consideration of us performing the Contracted Services you agree to pay and we shall be entitled to invoice you for the Charges in respect of the Contracted Services, any additional costs payable by you in accordance with these General Terms and Conditions and any tax (including VAT), levy, duty or other impositions in accordance with any legislation and/or Codes of Practice.

10.4.2 You acknowledge that all Charges are exclusive of VAT, which shall be charged to you at the prevailing rate.

10.4.3 You agree to pay our invoices by cleared funds within 21 days of the date of the invoice or as agreed in your Proposal (the “Due Date”). Any credit owed to you shall be applied to your account as soon as reasonably practicable.

10.4.4 You acknowledge and agree that the Charges may include commission we have paid to a TPI instructed by you to act on your behalf.

10.4.5 Payments by credit card may only be made at our sole discretion and any such payment shall not affect your agreed payment terms as shown in the Proposal and/or these General Terms and Conditions.

10.4.6 You may not deduct or off set any payments to be made under the Agreement against any amounts due from us, except where we have issued a credit to you. We may off set any amounts received from you, or owing to you, against any amounts under any other agreement between us.

10.5 Failure to pay

10.5.1 If the Proposal provides for payment by Direct Debit and you fail to provide, or you cancel a Direct Debit mandate or your bank fails to honour a transfer we may:

(a) terminate your Agreement in accordance with Clause 15.3.1 (Our Termination Rights);

(b) suspend performance of the Contracted Services;

(c) change your payment method, including demand completion and return of a Direct Debit mandate form and payment strictly by Direct Debit for the remainder of your Agreement;

(d) amend your invoicing and/or payment terms;

(e) demand a security deposit in accordance with Clause 10.1.3(d);

(f) tell Credit Bureau, which can affect your credit rating; and / or

(g) charge you for any reasonable costs we have incurred as a result of your failure to pay.

10.5.2 If, following the Due Date any amount remains unpaid by you, we may charge you (i) interest in respect of any amount remaining unpaid at 8% above the Bank of England Base Rate; and/or (ii) an amount up to £100 (one hundred pounds) for costs incurred by us in respect of such late payment.

10.6 Disputing an invoice

If you reasonably dispute any amount invoiced by us under the Agreement you must notify us immediately and we will work with you to resolve the dispute as soon as reasonably practicable. If we cannot resolve the dispute prior to the Due Date and we accept that the dispute is a bona fide dispute you shall pay to us any undisputed part of the invoice in accordance with Clause 10.4. After an agreement is reached between us in relation to the dispute or the dispute has been determined in accordance with Clauses 21.14 and 21.15, any amount payable shall be paid within seven (7) Working Days (together with interest accrued in respect of the amount in accordance with Clause 10.5.2) and any amount payable by us to you will be credited to your account (together with, at our discretion, interest at Barclays Business Premium Bank Rate from time to time).

10.7 Invoicing errors and reconciliation

If, at any time, we discover that any invoice we have sent to you was inaccurate we shall submit a revised invoice when it is reasonably practicable to do so including but not limited to after accurate information becomes available and in such event you shall pay such invoice in accordance with Clause 10.4.

11 Variations

11.1 Except as expressly provided for in these General Terms and Conditions, your Agreement may only be varied by an agreement in Writing signed by both Parties.

11.2 Notwithstanding any other provision in these General Terms and Conditions, we may vary your Agreement and/or pass through to you any costs, losses, expenses or liabilities incurred by us (directly or indirectly) as a result of or in connection with:

11.2.1 information provided by you or a TPI (where applicable) being incorrect, false or incomplete;

11.2.2 any changes made by you or any third party to your Meter Point(s) and/or the Metering Equipment after the Commencement Date;

11.2.3 any new, change in or repeal of law (including legislation and court judgments), industry agreements or the interpretation, application or enforcement thereof;

11.2.4 any new or increased charge introduced by or resulting from a decision, determination or ruling by the Authority, any other government body or competent authority or a third party (or a legal challenge thereto);

11.2.5 any directions or requirements of the Secretary of State under the Act or any other legislation or regulation;

11.2.6 the imposition of a requirement for an additional authorisation, requirement, consent, permission, approval, resolution, license, or registration, by the Authority or any other government body or competent authority;

11.2.7 the change in the membership status of the United Kingdom following service of notice on the European Council by the UK Government of its decision under Article 50 of the Treaty on European Union to withdraw from membership of the European Union, and/or as a consequence of any withdrawal agreement subsequently reached between the UK Government and the European Union; or

11.2.8 or otherwise as expressly provided for elsewhere in these General Terms and Conditions or any documents referred to herein.

12 Additional Meter Point(s)

12.1 Additional Meter Point(s) Requests

12.1.1 If you would like us to perform any Contracted Services in respect of Metering Equipment at any Additional Meter Point(s), you shall first notify us in Writing with the following details:

(a) address of the Premises to which the Additional Meter Point(s) relate(s);

(b) date upon which you wish us to commence performance of the Contracted Services in respect of each Additional Meter Point(s);

(c) which Contracted Services you require; and

(d) complete and accurate information (including technical details) of:

(i) any Metering Equipment already in existence;

(ii) the Authorised Supply Capacity of the Additional Meter Point(s); and

(iii) Code(s) of Practice applicable to the Additional Meter Point(s).

12.1.2 Where any Contracted Services in respect of Additional Meter Point(s) are proposed by you pursuant to Clause 12.1 (Additional Meter Point(s) Requests), we shall, within 5 (five) Working Days of receipt of such proposal, provide you with our Additional Meter Point(s) Proposal in respect of such Additional Meter Point(s). We shall be entitled to decline to submit an Additional Meter Point(s) Proposal for any reason.

12.2 Additional Meter Point(s) Proposal

12.2.1 An Additional Meter Point(s) Proposal shall comprise a written statement setting out:

(a) the Contracted Services proposed in respect of the Additional Meter Point(s) (“Additional Meter Point(s) Services”);

(b) the charges for the Contracted Services in respect of the Additional Meter Point(s) (“Additional Meter Point(s) Charges”); and

(c) the proposed Start Date of the Additional Meter Point(s) Services.

12.2.2 Where we have provided an Additional Meter Point(s) Proposal to you in accordance with Clause 12.2 then within 5 (five) Working Days of receipt of the Additional Meter Point(s) Proposal you shall notify us that:

(a) you agree with the Additional Meter Point(s) Proposal and we shall carry out and perform the Additional Meter Point(s) Services in accordance with the Additional Meter Point(s) Proposal and you shall pay the Additional Meter Point(s) Charges in accordance with Clause 10.4; or

(b) you reject the Additional Meter Point(s) Proposal and do not wish to procure the Additional Meter Point Services on any terms whether from us or any third party.

13 Liabilities

13.1 Nothing in the Agreement shall exclude liability for death, fraud or personal injury resulting from the negligence of either Party.

13.2 Subject to Clause 13.3, our maximum aggregate liability in contract, tort or otherwise (including any liability for any negligent act or omission) howsoever arising out of or in connection with the Agreement is limited to twice the Total Contract Value.

13.3 Subject to Clause 13.4 and 13.6, if we have been negligent or have failed to comply with the Agreement and that negligence or failure directly results in physical damage to your Premises our maximum aggregate liability to you shall be limited to £250,000 (two hundred and fifty thousand pounds).

13.4 For the avoidance of doubt, we shall only be liable to you for physical damage to your Premises which was reasonably foreseeable, at the time of entry into the Agreement, as a likely result of a breach. We shall not be liable for any damage to your Premises which was beyond our reasonable control howsoever caused.

13.5 Except in respect of your liability to pay the Charges and the Early Termination Charge (where applicable) and where otherwise expressly provided, neither Party shall be liable to the other Party, under contract or otherwise, for direct or indirect loss of use, revenue, profit, contract or goodwill or for any special, consequential or indirect loss or damage of any nature, or for any liability of the other Party to any other person.

13.6 We shall not be responsible for, nor shall we have any liability to you whatsoever for any losses, costs, expenses, liabilities or additional charges caused by the acts or omissions of any third party.

13.7 For the avoidance of doubt no warranty or representation is made by us as to the accuracy of the Half Hourly Data that we Collect in the performance of the Contracted Services and we shall not be liable for any loss, costs and expenses howsoever suffered or incurred by you in respect of any inaccurate Half Hourly Data.

14 Force Majeure

14.1 Neither party shall be liable to the other for failure to fulfil their obligations under the Agreement to the extent that the performance of the affected Party is prevented or delayed due to Force Majeure. The affected Party shall notify the other in Writing as soon as reasonably practicable of the Force Majeure event and take all reasonable steps to mitigate its effects. A further notification shall be issued to the other Party immediately when the circumstances of Force Majeure end.

14.2 If the effects of Force Majeure continue for a period of three (3) Months, the affected Party will further notify the other Party in Writing and the unaffected Party may terminate the Agreement in accordance with Clause 15.2.1 (c) (Your termination rights) or 15.3.2 (Our termination rights) as applicable.

15 Termination

15.1 Termination: General

15.1.1 The Parties acknowledge and agree that where the Agreement is terminated in respect of any single Meter Point(s) in accordance with these General Terms and Conditions:

(a) the Agreement shall continue in full force and effect in respect of the remaining Meter Points; and

(b) we shall proportionately adjust the total Charges for the Contracted Services in respect of the remaining Meter Points.

15.2 Your termination rights

15.2.1 You may terminate your Agreement immediately in respect of one or more Meter Points upon giving us Written notice:

(a) if we commit a material breach of our obligations under the Agreement and (if such breach is remediable) we fail to remedy that breach within a period of 10 (ten) Working Days after receipt of notice in Writing requiring us to do so;

(b) if we are the subject of an Insolvency Event; or

(c) in the circumstances described in Clause 14.2 (Force Majeure) by giving us thirty (30) days’ Written notice.

15.2.2 Where you have provided notice to terminate your Agreement under this Clause 15.2, the provisions of Clause 16.1 shall apply.

15.3 Our termination rights

15.3.1 We may, at any time, terminate your Agreement immediately in respect of one or more Meter Points by giving you Written notice:

(a) in the circumstances described in Clause 3 (Pre-performance and performance conditions), 5.2.2 (Your interest in the Premises), 8.3.1 (damage to Metering Equipment),

10.1.2 (Credit Terms), 10.2.2 (Security Deposit), or 10.5.1 (a) (Failure to pay);

(b) if you are the subject of an Insolvency Event;

(c) if any of the representations and warranties given under Clause 4 are inaccurate or untrue;

(d) if you are in material breach of any of your obligations under the Agreement;

(e) you (or your Third Party Intermediary) have provided us with false, incomplete and/or inaccurate information; or

(f) as otherwise expressly provided for in these General Terms and Conditions or any document referred to herein. Where we have provided notice to terminate your Agreement under this Clause 15.3.1 the provisions of Clause 16 (Consequences of Termination) shall apply.

15.3.2 We may terminate your Agreement immediately in respect of one or more Meter Points by giving you Written notice in the circumstances described in Clause 14.2 (Force Majeure). Where we have provided notice to terminate your Agreement under this Clause 15.3.2, the provisions of Clause 16.1 shall apply.

16 Consequences of Termination

16.1 On any termination of the Agreement including where we remain the Appointed Data Collector and/or Data Aggregator for any Meter Point(s):

16.1.1 we shall be entitled to cease performance of the Contracted Services;

16.1.2 you must immediately pay to us all unpaid Charges and any other amounts that remain owing in respect of the period before the expiry (whether or not those Charges or other amounts have been invoiced); and

16.1.3 we shall be entitled to De-energise any or all Meter Points and remove the Metering Equipment or any part thereof as soon as reasonably practicable.

16.2 Early Termination Charge

16.2.1 If the Agreement is terminated by us in accordance with Clause 15.3.1 we may (without prejudice to any other legal remedies we may have in respect of such termination) require you to pay the Early Termination Charge.

16.3 Calculation of Early Termination Charge

16.3.1 Subject to Clause 16.3.2 the Early Termination Charge shall be calculated as:

(a) any outstanding amounts that have been invoiced for but not yet paid; and

(b) any and all Charges that would have fallen due had the Contracted Services been performed from the date of termination of the Agreement until the End Date.

16.3.2 Where the Agreement has been terminated in respect of any single Meter Point(s), we shall proportionately adjust the Early Termination Charge.

16.3.3 You agree that the Early Termination Charge is fair and reasonable in all respects and is a genuine pre-estimate of the likely losses which we would sustain in the event of termination of the Agreement in accordance with Clause 15.3.1.

17 Consequences of expiry

17.1 On expiry of the Agreement you must immediately pay to us all unpaid Charges and any other amounts that remain owing in respect of the period before the expiry (whether or not those Charges or other amounts have been invoiced) and provided that we are no longer the Appointed Data Collector and/or Data Aggregator for any Meter Point(s):

17.1.1 we shall cease performance of the Contracted Services; and 17.1.2 we shall be entitled to De-energise any or all Meter Points and remove the Metering Equipment or any part thereof as soon as reasonably practicable.

17.2 Upon expiry of the Agreement, where we remain the Appointed Data Collector and/or Data Aggregator for any Meter Point(s), you shall pay the Deemed Rates in accordance with Clause 10.4.3 from the End Date to the earlier of the date that (i) we are De-Appointed as Data Collector and Data Aggregator; or (ii) you enter into a new contract with us for the provision of the Contracted Services.

17.3 Subject to your payment of the Deemed Rates we shall continue to perform the Contracted Services in accordance with these General Terms and Conditions. If you fail to pay the Deemed Rates as they fall due, we shall be entitled to cease performance of the Contracted Services by giving you Written notice and Clause 17.1.2 shall apply.

17.4 You agree to give us all reasonable access to your Premises to allow us to exercise our rights in Clause 16.1.3 and 17.1.2.

17.5 Where we are De-Appointed in accordance with Clause 17.2, Clause 17.1 shall apply.

18 Survival

18.1 Notwithstanding the expiry or termination of the Agreement, the expiry or termination shall not have effect until the date on which the Parties have fully performed their rights and obligations under Clause 16 (Consequences of Termination) and Clause 17 (Consequences of Expiry).

18.2 The expiry or termination of this Agreement shall not affect any accrued rights or liabilities. Clauses 13 (Liabilities), 16 (Consequences of Termination), 17 (Consequences of Expiry), 19 (Information), 21 (Miscellaneous) and 22 (Interpretation), shall survive and remain in force following the date on which the expiry or termination of this Agreement has effect in accordance with Clause 18.1.

19 Information

19.1 Any information we provide to you (or your TPI where applicable) is solely for the purpose of the performance of your obligations under the Agreement only and you must not use any such information for any other purpose.

19.2 Subject to the rest of this Clause 19.2 and Clause 20 (Personal Data) neither Party shall disclose information relating to the Agreement without the prior Written consent of the other Party, except to comply with any relevant law or regulation or any request or direction from any Authority. Notwithstanding the foregoing, you agree that we may disclose any information relating to you or your Agreement:

(a) to any person who is the beneficiary of a LOA in accordance with Clause 9 (LOAs);

(b) to any person in order to allow us to perform our obligations under the Agreement;

(c) to any person to whom we may transfer the whole or substantially the whole of our business;

(d) to any bank, financial institution, rating agency or other finance provider to the extent required in relation to the financing (or potential financing) of our business activities;

(e) with Credit Bureaux in order to exercise our rights under the Agreement;

(f) to other third parties to provide you with an agreed service;

(g) to any third party contracted by us to recover sums due to us and/or perform services on our behalf under this Agreement; and/or

(h) to organisations for the detection and prevention of crime.

Any data or information collected in connection with the performance of this Agreement may be retained by both Parties for at least six (6) years following the End Date.

20 Personal Data

20.1 If you provide any Personal Data to us under the Agreement, we will be the Data Controller. Our Data Protection Officer can be contacted at Newstead Court, Little Oak Drive, Annesley, Nottinghamshire NG15 0DR. We will Process your Personal Data in accordance with our Privacy Notice, as amended from time to time, which can be found at www.eonenergy.com/privacy or by contacting us to request a paper copy.

20.2 You have a number of rights relating to the access to, and control of your data. These are also set out in our Privacy Notice.

21 Miscellaneous

21.1 The Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements or understandings, whether written or oral, relating to the subject matter of the Agreement.

21.2 Each Party acknowledges and agrees that in entering the Agreement it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in the Agreement except in the case of fraudulent misrepresentation. Neither Party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Agreement.

21.3 Except for those expressly set out in the Agreement, all warranties, conditions, representations and undertakings (including any and all warranties, conditions, representations and undertakings implied by statute, common law or otherwise) are excluded to the fullest extent permitted by law.

21.4 The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same Agreement.

21.5 Termination or the ending of your Agreement shall not affect any rights or obligations which may have accrued prior to the date of termination or the end of your Agreement.

21.6 The Agreement is between you and E.ON Energy Solutions Limited. The General Terms and Conditions of your Agreement also apply where we act as agent of any of our group of companies and references to ‘we’, ‘us’ or ‘our’ shall include those other companies where appropriate.

21.7 You shall not transfer, novate or assign any of your rights or obligations under this Agreement without our prior Written consent, which we may withhold at our sole and absolute discretion. We may transfer or assign any or all of our rights or obligations under this Agreement without your consent.

21.8 No delay, neglect, or failure on the part of either party in enforcing against the other Party any term or condition of this Agreement, or exercising any right under this Agreement, shall be or shall be deemed to be a waiver or in any way prejudice any right of that Party under this Agreement. Any waiver by either Party of any of its rights under this Agreement must be in Writing and a waiver only applies to the specific breach expressly referred to in the waiver and shall not entitle any further breaches.

21.9 If any provision of the Agreement is declared invalid, unenforceable or illegal by the courts, the remaining provisions of the Agreement shall continue in full force and effect.

21.10 Any notice to be given under this Agreement by us to you shall be in Writing and delivered by hand or sent by email, recorded delivery or registered letter to the Notice Address (as applicable).

21.11 Internet communications are not always secure and we do not accept legal responsibility for any message sent electronically. You are responsible for verifying its authenticity before acting on the contents. Where we send electronic communication to you we cannot guarantee that they are virusfree and we do not take responsibility for virus checking.

21.12 Subject to Clause 21.6, any person who is not a Party to this Agreement shall not acquire or have any rights under this Agreement whether by virtue of the Contracts (Rights of Third Parties) Act 1999, or otherwise.

21.13 You may perform any of your obligations under the Agreement through any of your Affiliates. You acknowledge and agree that any act or omission of your Affiliate in relation to your rights or obligations under the Agreement shall be deemed to be an act or omission of you.

21.14 Each Party shall use reasonable endeavours to resolve a dispute. If the Parties are not able to agree a resolution or there is a failure to implement the resolution correctly, either Party may pursue any remedies that it may have under this Agreement or at law. The Agreement shall apply during any dispute resolution process.

21.15 Your Agreement (and any non-contractual obligations arising out of or in connection with it) shall be governed by the laws of England and Wales. The courts of England and Wales shall have exclusive jurisdiction to determine disputes arising out of or in connection with your Agreement (including any non-contractual obligations).

22 Interpretation and definitions

22.1 In the Agreement, where applicable and unless otherwise stated:

(a) references to the singular include references to the plural and vice versa;

(b) words denoting persons shall include a natural person, bodies corporate and unincorporated associations of persons and shall include permitted successors or assigns of such persons.

(c) headings are inserted for convenience only;

(d) references to any statute, statutory provision, statutory instrument, regulation or code include any amendments, extensions and reenactments thereof;

(e) references to “including”, “includes” and “in particular” are illustrative only, and shall not limit the sense of the words preceding them and each of them shall be deemed to incorporate the expression “without limitation”; and

(f) a word importing one gender shall (where appropriate) include any other gender;

22.2 These definitions shall apply to the Agreement and have the corresponding meanings assigned to them:

Accredited means a person who has a formal industry licence and/or accreditation of qualifications, systems and business processes;

Act means the Electricity Act 1989 as replaced, repealed or amended from time to time;

Additional Charges means, where you have a Non-Inclusive Plan, the charges for the Additional Services as specified in your Initial Proposal;

Additional Meter Point(s) means Meter Point(s) which were not included in your Initial Proposal and in respect of which you wish for us to provide Contracted Services;

Additional Meter Point(s) Charges means as defined in Clause 12.2.1(b);

Additional Meter Point(s) Proposal means as defined in Clause 12.2.1 (Additional Meter Point(s) Proposal);

Additional Meter Point(s) Services means as defined in Clause 12.2.1 (a);

Additional Services means:

(a) any Hand Held Reads that are required for any reason; and

(b) annual safety check of the Metering Equipment; Affiliate means, in relation to either Party, any “subsidiary”, any “holding company”, any subsidiary of such holding company, any “group undertaking”, any “subsidiary undertaking”, or any “parent undertaking” with each phrase having the same meaning as their respective definitions in sections 1159 to 1162 inclusive of the Companies Act 2006;

Aggregation means the aggregation of the previously Collected Half Hourly Data;

Agreement has the meaning given in Clause 1.1;

Agreed Service Period means in respect of each Meter Point, the period from and including the relevant Start Date to and including the earlier of (i) the End Date; or (ii) the date upon which the Agreement is terminated in accordance with these General Terms and Conditions;

All-Inclusive Charges means, where you have an All-Inclusive Plan, the charges for the All-Inclusive Services as specified in your Initial Proposal;

All-Inclusive Plan means the plan of that name specified by us to you in Writing;

All-Inclusive Services means:

(a) remote Collection of Half Hourly Data from your Metering Equipment;

(b) Aggregation of Half Hourly Data from your Metering Equipment;

(c) Annual safety check of the Metering Equipment;

(d) Subject to Clause 7.3, Hand Held Reads; and

(e) Provision of Optimum (with the level of the Optimum package being as set out in the Initial Proposal).

Appointed means an Accredited person appointed to a role by following formal industry process including those roles and processes set out or referred to in industry agreements (Appoint and Appointment shall be interpreted accordingly);

Associated Telecommunications means the technology, data communication lines, network connections and telecommunications links and access from your meter to our data centres and that enables remote retrieval of data from the meter at the Meter Point(s), as is more particularly described in your Proposal, and as may be amended by us from time to time;

Authorised Supply Capacity means the total amount of electricity which may be consumed at a Meter Point in any given period as agreed with the relevant Network Operator;

Authority means the Gas and Electricity Markets Authority (GEMA), the Office of Gas and Electricity Markets (Ofgem), Competition Markets Authority (CMA) or HMRC;

Balancing and Settlement Code means the code of that title and all related documents comprising a set of rules to which electricity market participants are required to conform, a copy of which can be found at www.elexon.co.uk;

Barclays Business Premium Bank Rate means as published on the Barclays website from time to time;

Charge; Charges, Charged means:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges;

(b) The Additional Charges; and

(c) any Additional Meter Point(s) Charges (where applicable);

Codes of Practice means Code of Practice (CoPs) as defined by Elexon which detail the technical requirements for metering systems; Collection; Collect, Collected means retrieval, validation and processing of Half Hourly Data;

Commencement Date means as defined in Clause 2.1;

Contracted Services means, in respect of the Metering Equipment ateach Meter Point:

(1) where you have an All-Inclusive Plan:

(a) the All-Inclusive Services; and

(b) any Additional Meter Point(s) Services; or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Services;

(b) Any Additional Services; and

(c) Any Additional Meter Point(s) Services;

Contract Year means a period of 12 Months commencing on the expected Start Date or any anniversary thereof;

Credit Bureaux means an establishment which collects and compiles data on individuals or businesses in order to evaluate the financial stability of such individuals or businesses;

Data Collector means the party responsible for the Collection of Half Hourly Data and/or data processing services in respect of the Meter Point(s);

Data Controller means as defined in the GDPR;

De-Appointment Notification means in relation to an Appointed Data Collector and/or Data Aggregator, the cessation or expiry for any reason of the Appointment and “De-Appointed” shall be construed accordingly;

Deemed Rates means the rates and charges applicable for the ongoing provision of the Contracted Services being those equivalent to the Charges we apply from time to time for the provision of the Contracted Services for one Contract Year;

Direct Debit means a pre-authorised payment under which you authorise your bank to pay a fixed and/or a variable amount of money directly to us at regular intervals, as shown in the Proposal;

Due Date means as defined in Clause 10.4.3;

Early Termination Charge means as defined in Clause 16.3.1;

Elexon means an independent body that procures, manages and operates services and systems, which enable imbalance settlement of the wholesale electricity market and retail competition in electricity supply;

End Date means the end date specified in the Initial Proposal;

Force Majeure means an act of God, industrial action (except where solely restricted to employees of the Party claiming a force majeure event), an act of the public enemy or terrorist, war declared or undeclared, sabotage or act of vandalism, civil commotion, lightning, earthquake, hurricane, fire, storm, flood, drought, accumulation of snow or ice, explosion, exceptional breakage or accident to machinery or pipelines, governmental restraint, and any other cause which is beyond the reasonable control of the affected Party. Notwithstanding the foregoing, “Force Majeure“ shall not include: any economic hardship, change in financial conditions or the inability or failure to pay any amount due under this Agreement;

GDPR means the EU General Data Protection Regulation (Regulation (EU) 2016/679), as may be amended, consolidated or re-enacted from time to time);

General Terms and Conditions means these General Terms and Conditions relating to the performance of the Contracted Services, as varied from time to time;

Good Industry Practice means, acting in a good and workmanlike manner and exercising a degree of skill, care and diligence, which, at the relevant time, would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in providing services of the same size, type, scope and complexity as us under the Agreement and under the same or similar circumstances;

Half Hourly Data means a record of the electricity used at the Premises in every half-hour period of every day in kilowatt-hours (kWh); Hand Held Reads where we are required to attend the Meter Point(s) in order to carry out manual Collection of Half Hourly Data;

HMRC means HM Revenue and Customs;

Initial Proposal means our proposal, which includes our statement of Charges, the duration of the Agreement and any special conditions applicable to the performance of Contracted Services in respect of the Meter Point(s);

Insolvency Event means circumstances under which either Party:

(a) has a receiver or similar officer appointed over all or a material part of its assets or undertaking;

(b) passes a resolution for windingup (other than a winding-up for, or in connection with, any solvent amalgamation or reconstruction) or a court makes an order to that effect or a court makes an order for administration (or any equivalent order in any jurisdiction);

(c) enters into any composition or arrangement with its creditors (other than relating to a solvent restructuring);

(d) ceases to carry on business;

(e) is unable to pay its debts as they become due in the ordinary course of business;

Letter of Authority; LOA means a letter, issued and signed by you, that authorises a TPI to act on your behalf regarding the Agreement;

Metering Equipment means the meters, Associated Telecommunications, outstations, wiring and any other equipment necessary for the installation and operation of the foregoing;

Meter Operator means a party appointed by your Supplier who is responsible for installing and maintaining the Metering Equipment at the Meter Point(s);

Meter Point; Meter Points means the particular location on the Premises where the Metering Equipment is located, as set out in the Proposal or otherwise notified to us in Writing in a timely manner prior to the Start Date;

Month; Monthly; Months means a calendar month;

Network means the local electricity distribution network;

Network Operator means in respect of a Meter Point(s), the distribution network operator responsible for the operation of the Network;

Non-Inclusive Charges means the charges for the Non-Inclusive Services as specified in your Initial Proposal;

Non-Inclusive Plan means the plan of that name specified by us to you in Writing;

Non-Inclusive Services means:

(a) remote Collection of Half Hourly Data;

(b) Aggregation of Half Hourly Data; and

(c) Provision of Optimum (with the level of Optimum package being as set out in the Initial Proposal);

Notice Address means, for each Party, the address for notices for that Party as specified in the Proposal or such other address as that Party may notify the other from time to time in writing;

Optimum means a software-as-a-service solution provided by E.ON UK plc, as appended to these General Terms and Conditions in Annex 1;

Optimum Terms of Use means the terms and conditions that govern the use by you of Optimum as amended from time to time;

Party, Parties means either you or us, and Parties mean you and us;

Personal Data means as defined in the GDPR;

Premises means each of your premises as stated in your Proposal upon which the Meter Point(s) are located;

Privacy Notice means our privacy notice which sets out:

(a) where we might get data about you from;

(b) why we might need it;

(c) what we might do with the data (including who we might share it with);

(d) the circumstances in which your data might be transferred abroad; and

(e) how long we keep it for; Process, Processed means as defined in the GDPR;

Proposal means (i) the Initial Proposal; and (ii) any Additional Meter Point(s) Proposal(s);

Sanctions List means a consolidated list of persons, groups and entities which are the designated target of, or otherwise subject to, economic and noneconomic sanctions imposed by Governments and/or multinational bodies;

Start Date means for each Meter Point, the proposed date that the performance of the Contracted Services shall be commenced as specified in the Initial Proposal and/or any Additional Meter Point(s) Proposal;

Supplier means a supplier of electricity licensed as an electricity supplier under the Act, who supplies electricity to Meter Point(s) at your Premises;

Third Party Intermediary (TPI) means an energy broker or energy consultant who, pursuant to a contract with you, provides introductory services, price comparison services, energy contract advice and/or in some instances utility management to businesses;

Total Contract Value means 100% of the following aggregate charges which are payable from and including the Start Date to and including the End Date:

(1) Where you have an All-Inclusive Plan:

(a) the All-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); or

(2) Where you have a Non-Inclusive Plan:

(a) The Non-Inclusive Charges; and

(b) any Additional Meter Point(s) Charges (where applicable); us; we; our means E.ON Energy Solutions Limited, a company incorporated under the laws of England and Wales with registered company number 03407430;

VAT means value added tax;

Working Day means any day other than a Saturday, Sunday, or bank holiday in England and Wales;

Writing; Written means writing sent or received by electronic communication;

you; your means the Party named as the customer in the Proposal.

Annex 1

Optimum Terms Of Use

1 General

1.1 These terms of use (“Terms”) relate to the use of Optimum, which is a softwareas- a-service solution provided by E.ON UK plc (“E.ON”), a company registered in England and Wales under company number 2366970. E.ON’s registered office is at Westwood Way, Westwood Business Park, Coventry, CV4 8LG.

1.2 E.ON wishes to make Optimum available as a service to the Customer for the benefit of the Customer and Users. Optimum is delivered via the internet to allow the Customer to visualise and analyse energy consumption data.

1.3 Where the Customer has an Ancillary Contract with E.ON or an Affiliate, these Terms shall be supplemental to that Ancillary Contract. Unless otherwise expressly provided in these Terms, if there is any conflict or inconsistency between these Terms and the terms of an Ancillary Contract, the terms of the latter shall prevail to the extent of the conflict or inconsistency only.

1.4 The Customer and Users should read these Terms carefully because by using Optimum, the Customer agrees to be legally bound by these Terms. Any capitalised terms shall have the meaning as set out in Clause 11 below.

2 Customer use

2.1 E.ON hereby grants the Customer a nontransferable, non-exclusive right to allow Users access to Optimum.

2.2 To access the Optimum website and the relevant content, the Customer acknowledges that it will need to have the most recent supported version of one of the following internet browsers:

(a) Windows Microsoft IE; or

(b) Mozilla Firefox; or

(c) Google Chrome; or

(d) Safari.

The Customer accepts that E.ON shall have no liability whatsoever where the Customer is unable to access Optimum as a result of not having the correct internet browser capability.

2.3 The Customer is permitted to access and make use of Optimum provided that such use is for the Customer’s internal business purposes only and the Customer warrants that it shall not (and shall procure that Users shall not) use any such information for any other purpose.

2.4 E.ON accepts no responsibility for any actions taken in consequence of the interpretation or use of data or information provided by E.ON, any Affiliate and/or third parties as part of Optimum. Furthermore, the Customer acknowledges that information supplied by Optimum is provided for analysis and information purposes only and under no circumstances should it be used for invoice validation purposes or relied on in any way to inform the Customer’s decisions regarding its energy procurement.

2.5 The Customer warrants that it is authorised to access Optimum and all meter points associated with its Optimum account.

2.6 Except to the extent such activities are expressly agreed by the parties, the Customer’s rights to benefit from Optimum does not permit it, or Users, to:

2.6.1 copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of Optimum;

2.6.2 combine, merge or otherwise permit Optimum (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;

2.6.3 attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide Optimum, except and only to the extent that such restriction is prohibited pursuant to Applicable Law; and

2.6.4 to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide Optimum, except and only to the extent that such restriction is prohibited pursuant to Applicable Law.

2.7 The Customer shall not, and shall procure that Users shall not, introduce any software virus or other malware (including any bugs, worms, logic bombs, trojan horses or any other self propagating or other such program) that may infect or cause damage to Optimum or E.ON’s systems or otherwise disrupt the provision of Optimum.

2.8 The Customer shall not be permitted to frame or mirror any part of Optimum unless it has E.ON’s prior written consent.

2.9 The Customer warrants and represents that it shall, and ensure that Users shall, keep confidential and, except as provided for in these Terms, not share with any third party their password or access details provided to facilitate access to Optimum. The Customer shall contact E.ON if updates to any list of Users given to E.ON are required, including when Users cease to be employed or engaged by the Customer.

2.10 The Customer is responsible for maintaining the confidentiality of its passwords and usernames, and shall be liable for all activities that occur under its Optimum account.

2.11 The Customer shall immediately notify E.ON in writing if it becomes aware of any unauthorised use of its passwords, Optimum, or any other breach of security.

2.12 The Customer accepts that it shall be liable for any loss or damage arising from its failure to provide E.ON with accurate information; or its failure to keep passwords secure and any unauthorised access to Optimum caused (in whole or in part) by the Customer.

2.13 E.ON reserves the right to monitor usage by all Users (by way of audits or otherwise) for the purpose of (among others) ensuring compliance with these Terms. Any audit may be carried out by E.ON or a third party authorised by E.ON. If any audit reveals that any password has been provided to an individual that is not a User, E.ON shall, without delay, disable any such passwords.

2.14 In the event of unauthorised use of Optimum by the Customer or Users, E.ON reserves the right to deny the Customer or Users access to Optimum by blocking, without prior notification, the IP addresses that the Customer or Users used to access Optimum and the Customer shall indemnify E.ON for any losses suffered by E.ON as a result.

2.15 E.ON will not be liable or be required to remedy any problem arising from or caused by the Customer’s use of Optimum in a manner other than as directed by E.ON.

3 Optimum and availability

3.1 Optimum is available to Customers in different packages (e.g. “Optimum Entry” and “Optimum Plus”) and each package will have different features and associated costs (if any) as set out in more detail in the Proposal. The Customer acknowledges and accepts that the features and functionality of Optimum made available to the Customer shall depend on the package agreed with E.ON. Where additional features or services become available, E.ON shall endeavour to notify the Customer in writing of the availability of those features and any related costs (if applicable).

3.2 The Customer acknowledges that E.ON may, from time to time, temporarily withdraw access to Optimum for maintenance, management or revision and E.ON shall endeavour to give as much notice as possible of such withdrawal except in the case of emergency (including, but not limited to, maintenance) in which case E.ON may withdraw access to Optimum immediately giving no notice. Optimum may also be unavailable in the case of system failure or for any other reason beyond E.ON’s reasonable control and E.ON accepts no liability whatsoever for the unavailability of Optimum for any reason.

3.3 The Customer acknowledges that E.ON shall be entitled to modify the features and functionality of Optimum as part of its ongoing development of Optimum.

4 Intellectual Property Rights

4.1 Optimum contains content made available by E.ON, its Affiliates and/or third parties. All information delivered to the Customer in the course of using Optimum and all Intellectual Property Rights that exist in Optimum and the related information and materials are exclusively owned by E.ON its Affiliates and/or third parties. Downloading or printing of content from Optimum is restricted to the Customer’s own internal business purposes. The material and content of Optimum may not otherwise be copied, reproduced, republished, uploaded, posted, transmitted, distributed or used in any other way unless expressly authorised by E.ON in writing.

4.2 Except as expressly authorised by E.ON in writing, the Customer and Users shall not modify, rent, lease, loan, sell, distribute or create derivative works based on the content of Optimum in whole or part.

5 Data protection

5.1 In order for the Customer to get the most out of Optimum and help E.ON to improve its service and tailor recommendations to the Customer, E.ON may use information taken from the Customer’s use of Optimum. E.ON offers choices and control over what information the Customer is willing to share and E.ON shall comply with Applicable Law in relation to data protection. For more information, the Customer should refer to the Privacy Notice at www.eonenergy.com/privacy.

5.2 E.ON may:

5.2.1 disclose any information relating to the Customer, including but not limited to consumption data, to third parties to allow E.ON to perform its obligations under these Terms;

5.2.2 share information relating to the Customer with third parties or any Affiliates, who E.ON have identified as being able to provide energy related services to the Customer;

5.2.3 disclose information to third parties contracted by E.ON to recover sums due to E.ON and/or perform services on E.ON’s behalf under these Terms;

5.2.4 share the Customer’s data with other organisations for the detection and prevention of crime;

5.2.5 share the Customer’s data with the organisation which communicates securely with smart meters and shares information from smart meters with customers’ energy suppliers and other authorised organisations;

5.2.6 use the contact details the Customer provides to E.ON including the Customer’s email address to contact the Customer about Optimum; and

5.2.7 share the Customer’s information with third parties carrying out market research and/or performance monitoring services for E.ON.

5.3 If the Customer provides any Personal Data to E.ON under these Terms, E.ON UK plc will be the ‘Data Controller’. E.ON’s Data Protection Officer can be contacted at Newstead Court, Little Oak Drive, Annesley, Nottinghamshire, NG15 0DR. E.ON will Process the Customer’s Personal Data in accordance with E.ON’s Privacy Notice, as amended from time to time, which can be found at www.eonenergy.com/privacy or by contacting E.ON to request a paper copy.

5.4 The Customer has a number of rights relating to the access to, and control of its data. These are also set out in E.ON’s Privacy Notice.

5.5 Any data or information collected in connection with these Terms or Optimum shall be retained by both parties for at least six (6) years for audit purposes.

6 Warranties

6.1 The Customer accepts that Optimum is provided “as is” without any representations or warranties, express or implied and E.ON makes no representations or warranties for the (i) availability of Optimum; and/or (ii) the accuracy and/or completeness of the information provided by Optimum. E.ON shall not accept, or be responsible for, any losses, costs, expenses, or additional charges caused as result of Optimum’s unavailability or the information provided by Optimum.

6.2 Furthermore the Customer accepts that nothing on, contained within, or produced from Optimum constitutes, or is meant to constitute, advice of any kind.

7 Liability

7.1 The Customer acknowledges and agrees that:

7.1.1 Optimum has not been designed to meet the Customer’s individual requirements and can not be tested in every operating environment; and

7.1.2 it is the Customer’s responsibility to ensure the facilities and functions of Optimum meet the Customer’s requirements and will not cause any error or interruption in the Customer’s own software or systems.

7.2 To the extent permitted by Applicable Law, E.ON excludes all warranties, representations, conditions and other terms of any kind, express or implied and whether arising by statute common law or otherwise. In any event, E.ON’s maximum liability and sole remedy to the Customer is the lesser of: (i) a refund of the price paid for Optimum (if any) in the 12 month period in which the relevant claim first arose or (ii) five thousand pounds (£5,000).

7.3 Nothing in these Terms shall exclude liability for death, personal injury, or fraud resulting from the negligence of a party. Neither party shall be liable to the other, under contract or otherwise, for loss of use, revenue, profit, contract or goodwill or for any special, consequential or indirect loss or damage of any nature, or for any liability of the other to any other person.

8 Termination

8.1 Where Optimum is provided to the Customer free of charge, E.ON may, by providing the Customer written notice, immediately terminate the provision of Optimum.

8.2 Where Optimum is paid for by the Customer pursuant to an Ancillary Contract, the provision of Optimum may be terminated either:-

8.2.1 in accordance with the terms of the Ancillary Contract; or

8.2.2 notwithstanding the provisions of the Ancillary Contract, immediately upon written notice to the Customer where the Customer is in breach of these Terms and such breach is either:

(a) capable of remedy but has not been remedied within 14 days of E.ON’s written notice to the Customer of such breach; or

(b) is incapable of remedy.

8.3 The Customer is free to stop using Optimum at any time; however where Optimum is provided to the Customer in connection with an Ancillary Contract with E.ON or one of its Affiliates, the Customer will continue to be charged for Optimum until the Ancillary Contract ends.

9 Confidentiality

9.1 Each party agrees that it may use the other party’s confidential information only in the exercise of its rights and performance of its obligations under these Terms and that it shall not disclose the other party’s confidential information including all knowhow, trade secrets, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this Clause 9.

9.2 Each party may disclose the other party’s confidential information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to exercise the disclosing party’s rights or perform its obligations under these Terms provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this Clause 9 as if it were a party.

9.3 Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.

9.4 Each party shall indemnify the other from and against any losses, damages, liability, costs (including legal fees) and expenses which the other party may incur or suffer as a result of or arising from any breach of the obligations under this Clause 9.

10 Miscellaneous

10.1 Subject to the terms contained in an Ancillary Contract, these Terms form the entire agreement between the parties and contain all agreed representations, warranties and undertakings in respect of Optimum.

10.2 These Terms shall be governed in accordance with English law. No legal proceedings in respect of these Terms shall be brought or conducted outside of England or Wales and any disputes arising in connection with these Terms shall be subject to the exclusive jurisdiction of the English courts.

10.3 The Customer acknowledges that it has had the opportunity to obtain independent legal advice regarding these Terms before accepting them.

10.4 The Customer shall not transfer, novate or assign any rights or obligations under these Terms without E.ON’s prior written consent (such consent to be given in E.ON’s sole discretion). E.ON may transfer or assign any or all of its rights or obligations under these Terms without the Customer’s consent.

10.5 E.ON reserves the right to change these Terms at any time. The Customer shall be notified at the point of login if updated versions of the Terms are to be used and will be effective immediately. Continued use of Optimum after any such changes constitutes the Customer’s consent to such changes.

10.6 Any waiver shall be agreed by each party in writing. A waiver of a specific breach shall not entitle any further breach.

10.7 If any provision is declared invalid, unenforceable or illegal by the courts, the remaining provisions of these Terms shall continue in full force and effect.

10.8 Any notice to be given under these Terms shall be in writing and delivered by hand or sent by recorded delivery or registered letter to the party’s registered address.

10.9 Each party shall use reasonable endeavours to resolve a dispute. If the parties are not able to agree a resolution or there is a failure to implement the resolution correctly, either party may pursue any remedies that it may have under these Terms or at law. These Terms shall apply during any dispute resolution process.

10.10 Any person who is not a party to these Terms shall not acquire or have any rights under these Terms by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise.

11 Definitions

11.1 In these Terms the following capitalised terms have the meaning as set out below:-

Affiliate means the holding company of or subsidiary company of E.ON or any company which is a subsidiary company of any subsidiary of such holding company. For the purpose of this definition the expressions “holding company” and “subsidiary” shall have the meaning given to them in Section 1159 of the Companies Act 2006;

Ancillary Contract means a contract entered into between the Customer and E.ON or an Affiliate for another service, including but limited to, energy supply and data collection services;

Applicable Law means any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances;

Customer means the person or entity receiving the benefit of Optimum, either as a standalone service or subject to an Ancillary Contract;

Data Controller shall have the same meaning as defined in the GDPR;

GDPR means the EU General Data Protection Regulation (Regulation (EU) 2016/679), as amended; 29

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Personal Data shall have the same meaning as defined in the GDPR;

Privacy Notice means E.ON’s privacy notice which sets out:

• where E.ON might get data about Customers from;

• why E.ON needs it;

• what E.ON might do with the data (including who E.ON might share it with);

• the circumstances in which Customer’s data might be transferred abroad; and

• how long E.ON keeps it for;

Process and Processed shall have the same meaning as defined in the GDPR;

Proposal means the proposal that forms part of the Ancillary Contract which details, amongst other things, E.ON’s statement of charges, special conditions and the relevant Optimum package purchased by the Customer; and

Users means the users that are authorised to use Optimum by the Customer, subject to a maximum of ten users per Customer site.