Ancillary Charges Schedule: means the ancillary charges schedule found at: www.smartestenergy.com/en_gb/business/information-for-business-customers as updated from time to time at SmartestEnergy Business’s sole discretion. 

Appropriate Tariff: means the Fixed Price Tariff or the Variable Tariff as confirmed to the Customer in the Application Form, Recorded Verbal Agreement or as varied by this Agreement, or as agreed between the parties. 

Averaging Period: has the meaning given to it in the Finance Act 2000, schedule 6, paragraph 20B. 

Business Day: means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. 

Catch Up Payment: has the meaning set out in clause 10.7 (b). 

Charges: means the fees for the Services calculated based on Meter Readings or Estimates and as applied to the Appropriate Tariff. 

Charges Invoice: has the meaning set out in clause 10.1. 

Climate Change Levy: means the tax established pursuant to schedule 6 of the Finance Act 2000.

Closed Credit Balance: means any Credit owed, on the date on which a relevant Last Resort Supply Direction took effect, by the other supplier to any Customer for whom the responsibility for the supply of electricity had either transferred from the other supplier to another Electricity Supplier or had otherwise terminated on or before the date on which the relevant Last Resort Supply Direction took effect. 

Connection Point: means, in respect of each Property, for electricity the point(s) at which the electricity flows between the Network and the Equipment and for gas, the point(s) at which the gas flows between the Gas Transporter and the Equipment. 

Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly. 

Critical Times: means Monday to Friday between 12pm and 7pm. 

Customer: means the person or firm who uses Services from SmartestEnergy Business. 

Customer Credit Balance: means the total of any Closed Credit Balance and Open Credit Balance. 

Customer Default: has the meaning set out in clause 4. 

Data Controller: Smartest is the Data Controller (as defined in the Data Protection Laws) of Personal Data collected from the Customer. 

Data Protection Laws: means the Data Protection Act 2018; the UK General Data Protection Regulation (UK GDPR) and any other equivalent Law regarding the protection of natural persons with regard to the processing of personal data and on the free movement of such data. 

Data Subject: means an individual who is the subject of Personal Data. 

Deemed Contract: means a contract between SmartestEnergy Business and the Customer as described in clause 2.4. 

Direct Debit: means a payment of an agreed amount collected from a bank account by a licensed BACS services user. 

Energy: means the gas and/or electricity as set out in the Application Form or the Recorded Verbal Agreement.

Equipment: means the equipment required by the Customer (including the Connection Points, pipes and wires) to enable the Network to supply the Energy to the Property. 

Estimated Annual Consumption: the estimated annual consumption as set out in the Application Form or Welcome Pack. 

Estimates: means estimates of Customer’s consumption of the Services, based on the Customer’s consumption history or as reasonably calculated by SmartestEnergy Business. 

Extension Offer: means the extension offer as set out in clause 18.1. 

Extended Fixed Term: means the extended fixed term as set out in clause 18.2. 

Fair Use Policy: means using no more than 50% of the electricity used, over an averaging period of 3 months, during Critical Times. 

Final Invoice: has the meaning given to it in clause 16.1 (a). 

Fixed Price Tariff: means the tariff applicable where the Customer enters into Fixed Term Agreement as set out in the Application Form, the Recorded Verbal Agreement or as agreed between the parties and as amended by a Price Review where applicable. 

Fixed Term: means the fixed term in relation to the Fixed Term Agreement as set out on the Application Form or the Recorded Verbal Agreement. 

Fixed Term Agreement: means an agreement for the Services for a Fixed Term (which could be either a fixed price agreement or a price review agreement) as set out in the Application Form or the Recorded Verbal Agreement. 

Fixed Term End Date: means the date the Fixed Term Agreement is to end (as amended by any Extended Fixed Term). 

Gas Transporter: means the company that is licenced by OFGEM to pipe gas to the Property. 

Group: in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group. 

Incoming Supplier: means the supplier that is to supply the Energy to the Property and become the Responsible Supplier, upon SmartestEnergy Business ceasing to be the Responsible Supplier to the Property. 

Industry Codes: means the codes of practice that apply in the energy industry. 

Invoice: means a Charges Invoice or Additional Invoice. 

Last Resort Supply Direction: means a direction given by OFGEM to the licensee that specifies or describes the premises to be supplied with electricity in accordance with standard condition 8 (Obligations under Last Resort Supply Direction). 

Landlord: means the legal owner of the Property. 

Landlord Consent: has the meaning set out in clause 15.1 (a). 

Mark to Market Loss: means an amount equal to the Market Price Difference multiplied by the Total Estimated Consumption.

Market Price Difference: means the higher of: 

(a) the wholesale market price (p/kWh) of Energy at the Agreement Commencement Date LESS the wholesale market price (p/kWh) of Energy on the date of termination of the Agreement; and 

(b) nil.

Meter: means the meter installed at the Property to measure the Customer’s consumption of Energy used through the Services (including but not limited to Advanced Meter and Smart Meter). 

Meter Reading(s): means meter readings obtained by SmartestEnergy Business from the Meter, which have been validated according to Industry Codes.

Micro Business Consumer: means a non-domestic consumer who meets one or more of the following criteria: 

(a) employs fewer than 10 employees (or their full time equivalent) and has an annual turnover or balance sheet no greater than £2 million; or 

(b) uses no more than 100,000 kWh of electricity per year; or 

(c) uses no more than 293,000 kWh of gas per year. 

As defined by Ofgem and as updated from time to time by Ofgem.

Network: means the electricity or gas (as applicable) distribution network, which supplies the Energy to the Property. 

Network Operator: means in respect of each Property the owner or operator of the Network in relation to electricity. 

Normal Business Hours: means 9am until 5pm on a Business Day. 

NTC: shall have the meaning set out in clause 6.2. 

Open Credit Balance: means any Credit owed by the other supplier to a Customer on the date of the relevant Last Resort Supply Direction. 

Out of Contract Services: means services which impose additional terms and which apply a different Appropriate Tariff. 

OFGEM: means the Office of Gas and Electricity Markets which regulates the gas and electricity markets in Great Britain, or any successor with comparable responsibilities and powers. 

Overdue: means in relation to Charges Invoices: sums which have been invoiced, and either (i) SmartestEnergy Business has sought to collect payment for but has been unable to collect such payment due to the acts or omissions of the Customer, or (ii) that invoice remains unpaid for 30 days following the date of the invoice, and in relation to Additional Invoices: means the Additional Invoice has not been paid immediately upon receipt of such Additional Invoice. 

Pass-Through Costs: means charges SmartestEnergy Business is required to pay which relate to the supply of Energy and which are outside the control of

SmartestEnergy Business, including but not limited to charges in connection with: 

(i) any taxes, levies or duties imposed on SmartestEnergy Business in relation to the supply of Energy; 
(ii) meters (including the aggregation and collection of meter data); 
(iii) the transmission and/or distribution of Energy, (including losses on transmission and/or distribution systems); 
(iv) the electrical capacity of the Customer’s connection to the Network; and 
(v) the Customer’s use of electricity where such use exceeds the capacity or volume allocated by the Network Operator

Payment Plan: means a payment plan whereby the Customer pays regular payments for the Services as agreed by the parties. 

Personal Data: has the meaning as defined in the UK Data Protection Act 2018 and relates only to personal data, or any part of such personal data, in respect of which the Customer is the Data Controller and in relation to which SmartestEnergy Business is providing Services under the Agreement. 

Pre-Payment Installation Charges: means the reasonable charges incurred by SmartestEnergy Business and payable by the Customer in setting up the Pre-Payment Services.

Pre-Payment Services: means the Services which are provided subject to the Customer paying in advance of consumption of Energy. 

Price Review: means the price review process set out in clause 19 which is applicable to Fixed Term Agreements. 

Price Review Notice: shall have the meaning set out in clause 19.1. 

Processing and Process: have the meaning as defined in the UK Data Protection Act 2018.

Property: means the property or properties to which the Services are being supplied, which is within the Great Britain and as set out in the Application Form and/or the Recorded Verbal Agreement. 

Recorded Verbal Agreement: means the verbal agreement for the Services, which shall include the Verbal Recorded Script and the Verbal Confirmation. 

Renewable Source Electricity: shall have the meaning set out in schedule 6 of the Finance Act 2000. 

Responsible Supplier: means the supplier registered in accordance with Industry Codes as responsible for the supply of Energy to the Connection Points at the Property. 

Rolling Agreement means an agreement for the Services which is not for a Fixed Term and continues unless terminated in accordance with the provisions in this Agreement.

Security Deposit: means a sum determined in SmartestEnergy Business’s absolute discretion, held by SmartestEnergy Business as stakeholder as security for any sums owed by the Customer from time to time under the Agreement. 

Small business consumer means a consumer who meets one or more of the following criteria:
(a)   fewer than 50 employees or their full-time equivalent AND an annual turnover of at most £6.5 million or a balance sheet total of £5 million; or
(b)   an annual consumption of electricity of not more than 200,000kWh; or
(c)   an annual consumption of gas of not more than 500,000kWh
As defined by Ofgem and as updated from time to time by Ofgem.

Smart Meter: means a metering device that conforms to any version of the Smart Metering Equipment Technical Specification as defined by the Smart Energy Code designated by the Department for Energy and Climate Change on 23rd September 2013.

SmartestEnergy Business: means SmartestEnergy Business Limited, a company registered in England and Wales with company number 06468946, having its registered office at Ridgeworth House, Liverpool Gardens, Worthing, BN11 1RY. 

SmartestEnergy Business Materials: has the meaning set out in clause 5.2 (n). 

Services: means maintaining a connection from the Property to the Network and supplying Energy to the Property for the Customer. 

Services Start Date: means the date on which SmartestEnergy Business becomes the Responsible Supplier and begins to provide the Services to the Customer at the Property.

Target Commencement Date: means the estimated date for the commencement of the Services, as set out in the Welcome Pack. 

Term: has the meaning set out in clause 2.9. 

Terms and Conditions: means these terms and conditions as amended from time to time in accordance with this Agreement. 

Total Estimated Consumption: means the amount of Energy (in kWh) calculated by SmartestEnergy Business as the estimated Energy consumption for the Term based on the Estimated Annual Consumption.  

Variable Tariff: means the variable tariff applicable (as updated from time to time at SmartestEnergy Business’s sole discretion) where the Charges are calculated on a variable tariff, and applicable: 

(i) where set out in the Application Form or the Recorded Verbal Agreement as updated from time to time; or 
(ii) upon expiry of a Fixed Term Agreement when SmartestEnergy Business continues to be the Responsible Supplier; or 
(iii) pursuant to the terms of this Agreement; or 
(iv) where agreed between the parties 

VAT: shall have the meaning in clause 8.2.

Verbal Confirmation: the verbal offer by the Customer requesting SmartestEnergy Business to provide the Services. 

Verbal Recorded Script: the information provided by SmartestEnergy Business to the Customer setting out the details of the Services and the operation of the Terms and Conditions. 

Vulnerable Person: a person whom for reasons of age, health, disability or severe financial insecurity, who is unable to safeguard their personal welfare or the personal welfare of other members of their household. 

Welcome Pack: means the documentation sent to the Customer on the Agreement Commencement Date confirming the Agreement that SmartestEnergy Business is to provide the Services to the Customer.

1.2. Interpretation: 

(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision. 
(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 
(c) A reference to writing or written includes fax and email. 
(d) In the event of a conflict between the provisions contained in these Terms and Conditions, the Application Form or as agreed in the Verbal Confirmation, unless the parties expressly agree otherwise in writing, the following order of precedence shall apply: 

(i) Terms and Conditions 
(ii) Application Form 
(iii) Verbal Confirmation 

5. Customer's Obligations and Warranties 

5.1 The Customer warrants that: 

(a) it, and the authorised representative who enters into this Agreement have the authority to enter into the Agreement; 
(b) it is the owner or occupier of the Property (or will be on the Services Start Date) and has the necessary authority to change the supplier of the Services at the Property; 
(c) the Property will be and will remain for the duration of the Agreement, connected to the Network to enable the provision of the Services at the Services Start Date; 
(d) where the Services relate to gas, the Property will be connected to gas mains to enable the provision of the Services at the Services Start Date; 
(e) the Property is wholly or mainly used for non-domestic purposes and that there are no Vulnerable Persons resident at the Property; 
(f) there will be no other supplier providing the Services to the Property at the Services Start Date and throughout the supply of Services; and 
(g) it will permit safe and unrestricted access to the Property, Meter and Equipment in accordance with the terms of this Agreement, and acknowledges that where such access is not permitted, SmartestEnergy Business reserves the right to obtain a legal warrant to gain such access to the Property and/or require the Customer to make alterations to the Property to ensure safe and unrestricted access to the Property, Meter and Equipment is granted (the cost of either shall be paid by the Customer). 

5.2 The Customer shall: 

(a) co-operate with SmartestEnergy Business in all matters relating to the Services (including compliance with laws, regulations and Industry Codes); 
(b) provide SmartestEnergy Business, its employees, Agents, consultants and subcontractors, with access to the Property and other facilities as reasonably required by SmartestEnergy Business; 
(c) permit SmartestEnergy Business or its Agents or representatives to take Meter readings as and when required; 
(d) provide SmartestEnergy Business with such information and materials as SmartestEnergy Business may reasonably require to supply the Services, and ensure that such information is complete and accurate and up to date in all material respects, and not misleading; 
(e) where the Services relate to electricity, enter into the NTC with the Network Operator to ensure that the Customer is connected to the Network at the Property; 
(f) prepare the Property for the supply of the Services; 
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; 
(h) comply with all applicable laws, including but not limited to the Bribery Act 2010, the Modern Slavery Act 2015 and health and safety laws; 
(i) pay all Charges in accordance with the Agreement; 
(j) accept that the supply of Services may be disconnected in accordance with these Terms and Conditions; 
(k) accept that SmartestEnergy Business is the only supplier of the Services to the Property, and not enter into a contract with any third party for the supply of Services to the Property during the Term; 
(l) notify: 

(i) SmartestEnergy Business prior to making any changes to the Property that are likely to alter the Customer’s use of the Services (whether this be volume of use or time of use or changes to the supply of Energy); 
(ii) SmartestEnergy Business in the event that the Property becomes, or is anticipated to become, used for domestic purposes or if there is, or may be, a Vulnerable Person resident at the Property; 
(iii) SmartestEnergy Business, where SmartestEnergy Business is supplying electricity before the installation of any generating equipment at the Property and/or before the voltage at which the electricity is supplied is changed; 
(iv) SmartestEnergy Business within 5 Business Days of SmartestEnergy Business ceasing to be the Responsible Supplier of a Meter Reading; and 
(v) the appropriate third party (such as the emergency services) where the Customer is aware of anything relating to the Services which may cause danger, require urgent attention or may affect the security, availability or quality of the Services. 
(vi) To notify SmartestEnergy Business if the customer is, or subsequently becomes a Micro Business Consumer or Small Business Consumer. 

(m) maintain the Meter and Equipment in compliance with laws and regulations and Industry Codes; 
(n) keep all materials, equipment, documents and other property of SmartestEnergy Business (SmartestEnergy Business Materials) at the Customer's premises in safe custody at its own risk, maintain SmartestEnergy Business Materials in good condition until returned to SmartestEnergy Business, and not dispose of or use SmartestEnergy Business Materials other than in accordance with SmartestEnergy Business's written instructions or authorisation; 
(o) ensure that the Property remains connected to the Network at the relevant Connection Point, and to maintain and comply with all necessary agreements and consents for such connection; 
(p) allow SmartestEnergy Business (where it is required) to install an Advanced Meter or a Smart Meter at a mutually convenient time, and within 3 months of Services Start Date. If installation of the Advanced Meter or Smart Meter is outside Normal Business Hours, then SmartestEnergy Business reserves the right to charge an additional fee for such installation; 
(q) not interfere with the Meter and Equipment and will ensure it is not damaged; 
(r) permit SmartestEnergy Business and/or any third party authorised by SmartestEnergy Business entry to the Property at all reasonable times in accordance with clause 7.1 of these Terms and Conditions. 

 
5.3 Where the Customer does not comply with the obligations set out in clause 5.2 above, SmartestEnergy Business shall not be responsible for any loss suffered by the Customer. The Customer also agrees to indemnify SmartestEnergy Business for any loss it suffers as a result of the Customer’s non-compliance with the provisions set out in clause 5.2 above.

6. National Terms of Connection 

6.1 Where the Services relate to the supply of electricity, the provisions in this clause 6 shall apply. 

6.2 By entering into this Agreement for the provision of the Services, the Customer is also entering into the National Terms of Connection (NTC) with the Network Operator (as updated from time to time). The NTC is a legal agreement which sets out the rights and duties of the Network Operator and the Customer in connection with where the Network Operator delivers the Services to. The NTC can be found here www.connectionterms.co.uk or alternatively, the Customer can write to Energy Networks Association 6th floor Dean Bradley House 52 Horseferry Road London SW1P 2AF. 

7. Meters, Meter Readings and Entering the Property 

7.1 The Customer shall ensure SmartestEnergy Business, its representatives, Agents, subcontractors and the Gas Transporter and the Network Operator are permitted safe, full and free access to the Property, the Meter and the Equipment at all reasonable times for the purpose of reading the Meter, inspecting, installing, maintaining, replacing, testing, disconnecting or removing the Meter and/or the Equipment in connection with the obligations under this Agreement. 

7.2 Where the access required in accordance with clause 7.1 is restricted, the Customer will be required (at their own expense) to ensure that any restrictions are removed and safe, full and free access to the Property, Meter and Equipment is granted. SmartestEnergy Business also reserves the right to charge the Customer an administration charge as set out in the Ancillary Charges Schedule for failure to permit SmartestEnergy Business, its representatives, Agents subcontractors or any third party authorised by SmartestEnergy Business access to the Property or for failing to permit SmartestEnergy Business to install a new Meter to the Property (whether this be as a result of failing to answer calls or otherwise). 

7.3 Where SmartestEnergy Business or its representatives, Agents or sub-contractors fail to arrive at the Property on an agreed date to install, monitor, remove or replace a Meter or any Equipment, the maximum liability to the Customer will be limited to £30. 

7.4 Where SmartestEnergy Business installs, removes or replaces a Meter and/or Equipment, and as a result of the Customer’s acts or omissions SmartestEnergy Business suffers a loss or incurs additional expenses, SmartestEnergy Business reserves the right to require the Customer to reimburse SmartestEnergy Business for any losses or expenses that SmartestEnergy Business incur (including abortive visit charges). 

7.5 Where the Equipment and/or Meter is to be removed, SmartestEnergy Business shall provide the Customer with notice of such intention in accordance with its obligations under law. 

7.6 The Meter installed will be the Property of SmartestEnergy Business or a third party. The Customer will not own the Meter and cannot object to the transfer of the Meter or its replacement. 

7.7 Where the Customer fails to provide an accurate Meter reading and SmartestEnergy Business is unable to obtain a Meter reading, SmartestEnergy Business will estimate the Energy used by the Customer. Estimates will be subject to reconciliation where accurate information is made available. 

7.8 Where the Customer reasonably believes that the Meter is producing inaccurate readings or is not functioning correctly, SmartestEnergy Business will arrange for the Meter to be inspected. Where the Meter’s accuracy is found to be within the limits prescribed in Industry Codes, or where the Meter is considered in SmartestEnergy Business’s sole discretion to be functioning correctly, the Customer will reimburse SmartestEnergy Business for the costs incurred for testing the Meter. If the accuracy is found to be outside the limits prescribed in Industry Codes, or where the Meter is considered in SmartestEnergy Business’s sole discretion to not be functioning correctly, SmartestEnergy Business will bear the costs of repair and ensure that the necessary adjustments are made to the Meter readings. 

7.9 SmartestEnergy Business or its representatives, Agents or subcontractors, may take readings of the Meter at the Property where required. The Customer may also provide readings of the Meter, which SmartestEnergy Business will use, providing they are consistent with the information SmartestEnergy Business has in relation to the Customer and validated according to Industry Codes. 

7.10 The Customer consents to SmartestEnergy Business obtaining, storing and using consumption data from the Meter. SmartestEnergy Business will only use this information for the purpose of settlement, forecasting, identifying energy efficiency savings and products, and monitoring potential energy theft. 

7.11 Where the Meter has the required capabilities, SmartestEnergy Business reserves the right to record the Customer’s usage of the Services (where the Services relate to the supply of electricity) on a 30 minute basis throughout the duration of the Agreement. 

8. Charges 

8.1 In consideration of the provision of the Services, the Customer shall pay the Charges. 

8.2 All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT) and Climate Change Levy. Where any taxable supply for VAT purposes is made under the Agreement by SmartestEnergy Business to the Customer, or where the Climate Change Levy applies, the Customer shall, on receipt of a valid VAT invoice from SmartestEnergy Business, pay to SmartestEnergy Business such additional amounts in respect of VAT or Climate Change Levy as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services. 

8.3 SmartestEnergy Business will pay commission to an Agent involved in negotiating and/or obtaining the Customer's contract with SmartestEnergy Business. The rate of commission is included within the Appropriate Tariff and shall be paid by the Customer for the duration of the Agreement. The Customer may request confirmation from SmartestEnergy Business of the total amount of commission paid or due to be paid under the Agreement to the broker. 

9. Changes to the Agreement 

9.1 SmartestEnergy Business reserves the right to increase the Charges on notice: 

(a) where the Agreement is a Fixed Term Agreement which is subject to a Price Review, in accordance with that Price Review; or 
(b) where the information which has been provided in relation to the Customer’s usage of the Services is inaccurate; or 
(c) where the type of Meter is incompatible with the Appropriate Tariff; 
(d) where the Services relate to electricity, if the Customer uses less than 1,200 kWh of electricity per month in accordance with the Services; or 
(e) where the Services relate to gas, if the Customer uses less than 4397 kWh of gas per month; or 
(f) to reflect any change in the Pass-Through Costs; or 
(g) where there is a change or event beyond the reasonable control of SmartestEnergy Business which has an impact on SmartestEnergy Business's business costs (including but not limited to the wholesale cost of Energy, meter operation and reading costs, transmission and Network costs, usage or capacity related charges from the Network Operator or changes in tax and duties and shall be determined at SmartestEnergy Business's sole discretion); or 
(h) where the Customer's consumption is not in line with the Fair Use Policy 

9.2 SmartestEnergy Business reserves the right to increase the Charges by providing 30 days’ notice: 

(a) where the cost of providing the Services exceeds the Charges; or 
(b) where it is not commercially viable (which shall be determined at SmartestEnergy Business’s sole discretion) for SmartestEnergy Business to provide the Services; or 
(c) the Property becomes or is anticipated to become used for domestic purposes or there is or may be a Vulnerable Person resident at the Property.

9.3 Where SmartestEnergy Business increases the Charges in accordance with clause 9.2, the Customer has the right, for a period of 30 days after the notice of the change, to transfer without penalty the Services to an Incoming Supplier. Where such notice is provided the increase to the Charges will not take effect. Where such right is not exercised, it will be presumed that the Customer has accepted the increase in the Charges and the change to the Charges will take effect. 

9.4 Where a Variable Tariff applies, SmartestEnergy Business reserves the right to amend the Variable Tariff on 30 days’ notice. 

9.5 SmartestEnergy Business reserves the right to amend any provision of this Agreement if necessary, to comply with any applicable law or regulatory requirement, or if the amendment will not reduce the nature or quality of the Services, and SmartestEnergy Business shall notify the Customer in any such event. SmartestEnergy Business reserves the right to vary provisions of the Agreement (but not the Charges (other than as set out in clause 9.1 and 9.2) or the Term) at any time, by providing notice to the Customer in writing of not less than 30 days prior to the commencement on the new terms. The Customer has the right where the Agreement is a Deemed Contract to terminate the Agreement in accordance with clause 15.3(e). Where the Agreement is not a Deemed Contract the Customer has the right for a period of 30 days after the notice of the change, to terminate the Agreement. Where such right is not exercised, it will be presumed that the Customer has accepted the variations to this Agreement and such variations will take effect. 

10. Payment 

Invoicing  
10.1 SmartestEnergy Business will send to the Customer an invoice in respect of the Charges and/or any Ancillary Charges, (Charges Invoice). The Charges Invoice will set out a breakdown of the Charges and where applicable any Ancillary Charges payable.  

10.2 SmartestEnergy Business will send the Charges Invoice electronically. The Customer is required to maintain an email address for this purpose and notify SmartestEnergy Business of any changes to such email address. Should the Customer require the Charges Invoice to be sent in paper copy then this will be provided free of charge for the reoccurring, monthly instance. However, should additional paper copies, or any other paper statement in relation to the Customer’s account be requested, an Ancillary Charge may apply. 

10.3 Where a Customer purchases additional services in accordance with this Agreement which are not included on the Ancillary Charges Schedule, SmartestEnergy Business may charge for such services by submitting an additional invoice (Additional Invoice). 

Payment 
10.4 Unless otherwise agreed, the Customer shall pay all Charges and Ancillary Charges via Direct Debit, and the Customer agrees that any payment it makes will be subject to the Allocation Policy. Unless otherwise agreed, the Customer shall be required prior to the Services Start Date to set up a Direct Debit in favour of SmartestEnergy Business in relation to the payment of the Charges and, where applicable, any Ancillary Charges. 

10.5 Where an Advanced Payment is required then: 

(a) The Customer must pay the Advance Payment and SmartestEnergy Business shall collect the Advance Payment 30 days prior to the Target Commencement date. 
(b) If the Advance Payment has not been received 14 (fourteen) calendar days prior to the Target Commencement Date: 

(i) without limiting or affecting any other right or remedy available to it, SmartestEnergy Business (at its sole discretion) shall have the right to discontinue its application to be the Responsible Supplier for the Customer and, provided that SmartestEnergy Business is not the Responsible Supplier on the Target Commencement Date, the Agreement will automatically terminate. 
(ii) SmartestEnergy Business shall have no further obligation to the Customer and shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly as a result of the Agreement terminating on the basis of this clause 10.5. 

10.6 Where there is a Payment Plan in place, SmartestEnergy Business will collect payments as agreed between the parties.  

10.7 Where there is no Payment Plan in place, SmartestEnergy Business will collect payments of Charges and Ancillary Charges on a date selected by SmartestEnergy Business. SmartestEnergy Business will give the Customer a minimum of 7 days’ notice of such collections. 

10.8 Where a Payment Plan applies, SmartestEnergy Business (acting reasonably) reserves the right to: 

(a) amend the sum collected under the Payment Plan to reflect the usage, by providing at least seven days’ notice; or 
(b) request an additional payment, payment of which is due upon receipt of such request (Catch Up Payment). 

10.9 An Additional Invoice is payable immediately from the receipt of the Additional Invoice.  

10.10 The Customer may not withhold payment of the Charges, Ancillary Charges or Catch Up Payment, because they are based on Estimates or because the Customer has appointed a third-party agent to provide bill processing or validation services. 

10.11 SmartestEnergy Business shall use all reasonable endeavours to provide the Customer with a Final Invoice within six weeks of the date on which SmartestEnergy Business ceases to be the Responsible Supplier. 

10.12 In the event that SmartestEnergy Business owes the Customer any amount pursuant to the Agreement or Deemed Contract, such amount may be offset against any other amount owed by the Customer pursuant to any other contract for the supply of Energy deemed to have been entered into pursuant to Paragraph 3 of Schedule 3 of the Act or any other agreement for the supply of Energy by Smartest to the Customer. 

Non-Payment 

10.13 Where the Customer cancels its Direct Debit instruction, or a Direct Debit payment is returned unpaid, or no Direct Debit is in place SmartestEnergy Business reserves the right to charge an administration fee and/or collect payment by other means.  

10.14 Where an Invoice becomes Overdue, SmartestEnergy Business reserves the right to: 

(a) accept payment of any outstanding Invoice by other means; 
(b) charge an administration fee for processing the payment; 
(c) require the Customer to pay interest on the Overdue sum from the due date until payment of the Overdue sum, whether before or after judgment. Interest under this clause 10.12(c) will accrue each day at 8% a year above the Bank of England's base rate from time to time, but at 8% a year for any period when that base rate is below 0%; 
(d) pass information in relation to the Customer (which may include Personal Data) to a credit reference agency and/or debt collection agency; 
(e) remove any special offers, rates or discounts that apply to the Services (and this may result in a change in the Customer’s Appropriate Tariff); 
(f) transfer the Customer to the Pre-Payment Service; 
(g) recover reasonable expenses incurred in recovering payment of the outstanding Invoices, including costs associated with disconnection or replacement of a Meter, and any other third party costs SmartestEnergy Business incurs, including costs from a third party debt recovery agency, legal costs and expenses;  
(h) change the Appropriate Tariff to a Variable Tariff; 
(i) disconnect, cut-off, de-energise, restrict or suspend (either remotely or by accessing the Property), the supply of Services;  
(j) require the Customer to pay the Charges in advance based on an Estimate; 
(k) terminate the Agreement. 

10.15 If following receipt of an Invoice or Catch Up Payment request the Customer (acting reasonably and in good faith) provides SmartestEnergy Business with notice that there is a dispute (for the avoidance of doubt, the Invoice being based on an Estimate will not be considered to be grounds for a reasonable dispute) in relation to the Invoice or the Catch Up Payment request the Customer shall where the dispute relates to part of an Invoice or Catch Up Payment Request, pay the undisputed part of the Invoice or Catch Up Payment (together with any other undisputed outstanding Invoices or Catch Up Payments) in accordance with these Terms and Conditions. 

10.16 Subject to clauses 10.12 and 10.17 all amounts due by the Customer under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). 

10.17 SmartestEnergy Business reserves the right to set off any credit due to the Customer under this Agreement against any amounts the Customer owes to SmartestEnergy Business under this Agreement (or in any other account the Customer has with SmartestEnergy Business). 

10.18 In the event SmartestEnergy Business either becomes aware or has reason to believe that the Customer is having or will have difficulty paying all or part of the Charges the Parties may discuss and SmartestEnergy Business shall use reasonable endeavours to: 

(a) use, where available, a means by which payments may be deducted at source from a social security benefit received by the Customer; 
(b) allow the customer to pay by regular instalments; or 
(c) allow the Customer to pay using PrePayment Services, where it is safe and reasonably practicable in all the circumstances of the case for the Customer to do so. 

Security Deposits 

10.19 SmartestEnergy Business reserves the right to ask the Customer to pay a Security Deposit at any point during this Agreement, where: 

(a) SmartestEnergy Business has concerns regarding the Customer’s ability to pay the Charges (including but not limited to where the Customer has a poor credit history, fails a credit check, or has provided no credit history due to a Deemed Contract); 
(b) the Customer fails to adhere to the payment provisions in this Agreement; 
(c) the Customer does not permit SmartestEnergy Business to collect daily usage data from the Meter; 
(d) the Customer cancels its Direct Debit or Direct Debits are returned unpaid. 

10.20 Where a Security Deposit is requested by SmartestEnergy Business, the Customer shall pay the Security Deposit to SmartestEnergy Business within 5 Business Days from the date of request.  

10.21 The Security Deposit will be repaid to the Customer (less any unpaid Charges) within a reasonable time after the termination of this Agreement. 

10.22 SmartestEnergy Business shall be entitled to draw on funds held as a Security Deposit at any time for any outstanding debt. Where SmartestEnergy Business draws on a Security Deposit, it reserves the right to ask the Customer for additional sums to replenish the Security Deposit.  

Backbilling 

10.23 Where the Customer is a Micro Business Consumer and SmartestEnergy Business issues an invoice, or otherwise seeks to recover (including via a Prepayment Meter) Charges from the Customer (hereafter a ‘charge recovery action’), SmartestEnergy Business will only do so in respect of 

(a) units of Energy which could reasonably be considered to have been consumed within the 12 months preceding the date the charge recovery action was taken; and 
(b) where applicable, amounts in respect of a Standing Charge or any other type of supply charge accrued within the 12 months preceding the date the charge recovery action was taken. 

10.24 Paragraph 10.23 does not apply in the following circumstances: 

(a) SmartestEnergy Business has taken a charge recovery action which complied with paragraph 10.23 and, due to non-payment, is continuing to take steps to obtain payment for the same Charges; or 
(b) SmartestEnergy Business has been unable to take a charge recovery action for the correct amount of electricity consumed due to obstructive or manifestly unreasonable behaviour of the Customer; or 
(c) the Customer failed to notify SmartestEnergy Business when it became, or ceased to be, (as applicable) the occupier of the Property; or 
(d) the Customer failed to provide a Meter Reading within 14 (fourteen) calendar days of request.  

11. Climate Change Levy 

11.1 This clause 11 only applies to the supply of electricity. 

11.2 Where the electricity supplied to the Property is Renewable Source Electricity, SmartestEnergy Business will charge the Customer an additional amount equal to the value of the Climate Charge Levy that would have applied if the electricity had not been Renewable Source Electricity. In the Averaging Period, the amount of exempt renewable supplies made by SmartestEnergy Business will not exceed the difference between (a) the total amount of Renewable Source Electricity that during that period is either acquired or generated by SmartestEnergy Business, and (b) so much that the total amount is allocated by SmartestEnergy Business other than to exempt renewable supplies. 

12. Data 

12.1 The Parties agree and acknowledge that: 

(a) During the term of the Agreement, Personal Data (as defined in the Data Protection Laws) may be disclosed by a Party (the “Data Disclosing Party”) to the other Party (the “Data Receiving Party”) in connection with the Data Receiving Party and/or its Affiliate exercising its rights and/or performing its obligations under the Agreement (in particular in order to ensure a communication). The Data Receiving Party undertakes that it will process such Personal Data in accordance with the Data Protection Laws. 
(b) The Personal Data disclosed under the Agreement may include but is not limited to a particular name and surname, name of an employer, employment position, and work contact details, meter point and consumption data, billing address and bank details for processing payments. 
(c) The Data Receiving Party shall apply adequate technical and organizational measures to ensure protection of the Personal Data, appropriate to the risks to the rights and freedoms of natural persons and the nature of the Personal Data and preventing unnecessary collection of the Personal Data according to the Data Protection Laws. 
(d) The Data Disclosing Party will notify the data subjects whose Personal Data has been transmitted to the Data Receiving Party of processing of their Personal Data by the Data Receiving Party and of the Data Receiving Party’s rights determined in clause 12.1(a). 

12.2 Smartest is the Data Controller (as defined in the Data Protection Laws) of Personal Data collected from the Customer. 

12.3 The Customer agrees and acknowledges that Smartest may: 
(a) give details of the Customer’s account to fraud prevention agencies (including but not limited to TRAS (the Theft Risk Assurance Service) and AUGE (Allocation of Unidentified Gas Expert)), who carry out checks to help prevent, identify and/or detect fraud and/or energy theft; and 
(b) in the event that SmartestEnergy Business suspects or confirms that the Customer may have been victim of or committed fraud and/or energy theft, provide fraud prevention agencies with a record, which may: 

(i) include sensitive information about alleged criminal offences; and 
(ii) be shared with other energy companies. 

12.4 The Customer agrees that SmartestEnergy Business can ask the Customer’s previous supplier for information to assist SmartestEnergy Business providing the Services. 

12.5 Each Party shall be entitled to record telephone conversations held in connection with the Agreement and to use the same as evidence and warrants that it has established the necessary lawful basis for such recording, as specified in the Party’s Privacy Policy (SmartestEnergy Business’s Privacy Policy is set out at Privacy Notice. 

13. Limitation of Liability 

Nothing in the Agreement shall limit or exclude SmartestEnergy Business's liability for: 

(a) death or personal injury caused by its negligence, or the negligence of its employees, Agents or subcontractors; 
(b) fraud or fraudulent misrepresentation; 
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law; or 
(d) any other liability which cannot be excluded by law. 

13.2 Subject to clause 13.1, SmartestEnergy Business shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for: 

(a) loss of profits; 
(b) loss of sales or business (including business opportunity); 
(c) loss of agreements or Agreements; 
(d) loss of anticipated savings; 
(e) loss of use or corruption of software, data or information; 
(f) loss of or damage to goodwill; and 
(g) any indirect or consequential loss. 

13.3 Subject to clause 13.1 and 13.2, SmartestEnergy Business's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Agreement shall be limited to 100% of the total Charges paid by the Customer and received in cleared funds by SmartestEnergy Business in the 12 month period prior to the date the liability arose. 

13.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Agreement. 

13.5 SmartestEnergy Business shall not be responsible for any loss or damage due to the Customer (or a third party not approved by SmartestEnergy Business) tampering with the Meter and/or Equipment. The Customer shall indemnify SmartestEnergy Business for any loss it suffers as result of the Customer (or a third party not approved by SmartestEnergy Business) tampering with the Meter and/or Equipment. 

13.6 SmartestEnergy Business shall not be responsible for any loss or damage the Customer suffers as a result of an act or omission (including but not limited to interrupted, delayed or reduced supply) by the Network Operator or the Gas Transporter. 

13.7 SmartestEnergy Business shall not be responsible for any for any loss or damage the Customer suffers as a result of an act or omission (including but not limited to interrupted, delayed or reduce supply) caused by events outside the control of SmartestEnergy Business (including but not limited to power outages). 

13.8 The Customer shall indemnify SmartestEnergy Business for any loss or damage it suffers as a result of the Customer’s failure to adhere to the terms of this Agreement. 

13.9 This clause 13 shall survive termination of the Agreement. 

14. Suspension of Services 

Without affecting any other right or remedy available to it, SmartestEnergy Business may disconnect, cut-off, de-energise, restrict, suspend or permanently cease (either remotely or by accessing the Property), the supply of Services under the Agreement or any other agreement between the Customer and SmartestEnergy Business if: 

(a) the Customer fails to pay any amount due under the Agreement on the due date for payment; 
(b) the Customer becomes subject to any of the events listed in clause 15.2 (l) to clause 15.2 (n), or SmartestEnergy Business reasonably believes that the Customer is about to become subject to any of them; 
(c) the Customer fails to adhere to the payment terms set out in clause 10; 
(d) the Customer fails to pay the Security Deposit (or any replenishment of the Security Deposit); 
(e) the terms of this Agreement are breached by the Customer; 
(f) the Equipment and/or Meter have been disconnected; 
(g) SmartestEnergy Business is required by law or regulation to cease providing the Services; 
(h) SmartestEnergy Business believes that the Energy intended to be supplied has been stolen or redirected; 
(i) SmartestEnergy Business believes there has been an interference with the Network or Meter; 
(j) OFGEM, the Gas Transporter or the Network Operator requests that SmartestEnergy Business ceases providing the Services; 
(k) there is a risk of danger to the public or damage to property where the supply of the Services continues; 
(l) SmartestEnergy Business has terminated the Agreement but continues to be the Responsible Supplier. 

14.2 Where the Services are to be disconnected, restricted or suspended in accordance with clause 14.1: 

(a) SmartestEnergy Business shall not be held responsible for any loss the Customer suffers as a result of such disconnection, restriction or suspension, and the obligations on the Customer as set out in this Agreement continue to apply; and 
(b) the Customer shall permit SmartestEnergy Business or its Agent, sub-contractor, representative or any third party duly authorised to act on behalf of SmartestEnergy Business, free and uninterrupted access to the Property, the Meter and all Equipment upon reasonable notice to disconnect (and where appropriate re-connect) the supply of Services. Where the Property, Meter and Equipment are not accessible, the Customer agrees to pay all necessary costs to ensure that the Property, Meter and Equipment are accessible. 

14.3 Where the access required as set out in clause 14.2 (b) is not permitted, SmartestEnergy Business reserves the right to exercise its right under clause 5 (1) (g). 

14.4 The Customer shall be responsible for all costs associated with the re-connection and commencement of the Services following a disconnection or suspension of the Services. 

15. Termination