TERMS OF SERVICE RESIDENTIAL FIXED PRICE ELECTRIC SERVICE

Transcription

1 TERMS OF SERVICE RESIDENTIAL FIXED PRICE ELECTRIC SERVICE BRILLIANT ENERGY, LLC PUCT REP License # Wilcrest Dr., Ste. 109 Houston, Texas Ph. (713) , Toll-Free (877) Fax (713) , Toll-Free (877) Hours of Operation: 8:00 a.m. 5:00 p.m. Central Time The following Terms of Service ( TOS ) set forth below apply to Customer s purchase of electric services from Brilliant Energy, LLC ( REP ). For purposes of this TOS, the term Customer shall mean a Residential Customer. A Residential Customer is the applicant for residential electric service whose name appears on the LOA forming part of this Agreement, such person s spouse or an authorized agent thereof (as applicable). REP and Customer are each a Party and collectively are the Parties to this Agreement. This TOS, together with Customer s Letter of Authorization ( LOA ), Customer s relevant Electricity Facts Label ( EFL ), and the Your Rights as a Customer disclosure document ( YRAC ) form the entire agreement between Customer and REP ( Agreement ). By accepting retail electric service from REP, Customer agrees to be bound by the terms of this Agreement. Customer may locate specific information about its electric Product (as hereinafter defined) by referring to the relevant EFL applicable to Customer s Product. All references herein to the Public Utility Commission of Texas ( PUCT ) Substantive Rules Applicable to Electric Service Providers, as amended ( PUCT Rules ) may be accessed by Customer online at I. GENERAL SERVICE TERMS A. Purchase and Sale of Electricity. Customer agrees to purchase retail electric services from REP for the ESI ID(s) at the Service Address(es) designated by Customer in its LOA during the Term (as hereinafter defined), and REP agrees to provide such services to Customer. The type of service provided to Customer under this Agreement shall be either a: (i) Fixed Rate Product; or (ii) Variable Rate Product if Customer receives REP s default renewal product (as further discussed in Section VII herein) (in each case, Product ). B. Term of Service. When Customer enrolls with REP, Customer shall elect in the LOA the length of time that Customer shall receive retail electric services from REP pursuant to this Agreement ( Term ). The Term of this Agreement shall begin on (i) the date on which Customer s switch to REP occurs (for a standard switch or self-selected switch, as elected by Customer in the LOA); or (ii) the date on which Customer s meter is activated (for a new service/move-in/priority move-in, as elected by Customer in the LOA) ( Effective Date ). The Term shall end on :(i) the end date of the Term elected by Customer in the LOA; or (ii) any date prior to the expiration of the Term on which this Agreement is canceled or otherwise terminated early by Customer (by switching to a new retail electric provider or otherwise) or by REP, in each case as permitted herein. Brilliant shall continue to provide service to Customer beyond the end date elected above until Customer s TDU conducts the first meter read on or after the elected end date, and any such service so provided shall be priced consistent with the terms of Brilliant s Variable Rate Product. Upon Customer s request, REP shall provide to Customer the particular start date and end date applicable to the Term of this Agreement. C. REP Not Responsible for Customer s Prior Balances. REP and Customer expressly acknowledge and agree that REP shall have no responsibility for payment of any outstanding debts owed by Customer to any third-party relating to Customer s receipt of retail electric service prior to enrolling with REP, including but not limited to any amounts due and payable to Customer s previous retail electric provider or charges owed to a Transmission and Distribution Utility ( TDU ) relating to Customer s prior retail electric service. II. CUSTOMER S PRICE FOR ELECTRIC SERVICE A. Charges Included in Customer s Average Price. The total monthly price per Kilowatt-hour ( kwh ) charged by REP is Customer s Average Price, which is comprised of Customer s Fixed Base Rate and a TDU Meter Surcharge assessed by the TDU. The Fixed Base Rate includes the energy charge to supply the Product to Customer and all recurring TDU charges for the delivery of electricity, including, but not limited, to: (i) any delivery loss charges and transmission loss charges; (ii) all recurring Electric Reliability Council of Texas ( ERCOT ) or Texas Regional Entity ( TRE ) administrative Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 2 of 16

2 fees charged to REP, including but not limited to any capacity charges, ancillary service charges, ERCOT administrative fees, imbalance settlement charges, and ERCOT credit requirement charges; and (iii) any other recurring third-party fees incurred by REP in providing service to Customer hereunder, including but not limited to any qualified scheduling entity charges, scheduling service charges, forecasting service charges, and PUCT credit requirement charges. B. Charges Not Included in Customer s Average Price. Customer s Average Price does not include the following charges, all of which shall be passed through to Customer and separately stated on Customer s invoice: (i) any state and/or local sales taxes (whether charged by municipalities, the PUCT or otherwise); (ii) reimbursement for the state miscellaneous gross receipts tax; (iii) any non-recurring charges assessed by the TDU (e.g., special meter read/test fees, installation and connection fees, disconnection and reconnection fees); or (iv) any non-recurring charges assessed by REP. Customer acknowledges that the applicable TDU bills REP for certain non-recurring charges relating to services initiated by Customer, including but not limited to a switch request, move-in, priority move-in, out-of-cycle meter read, meter installation, disconnection or reconnection. When such non-recurring charges are incurred by REP, they will be passed through to Customer on the monthly invoice provided by REP. The specific amounts payable for such TDU services are determined by the TDU (not REP) and are subject to change in the TDU s discretion. For a priority move-in, in addition to any charges levied by the TDU, Customer shall pay an Express Activation Fee of seventy-five dollars ($75). In addition to any non-recurring charges assessed by the TDU, Customer will be responsible for the following non-recurring charges assessed by REP (as provided under this Agreement): (i) a Late Fee equal to five percent (5%) of uncontested past due balances owed to REP, plus interest (see Section III(B) herein); (ii) an Insufficient Funds Fee of thirty dollars ($30) (see Section III(C) herein); (iii) a fee of ten dollars and ninety-nine cents ($10.99) for each Customer ESI ID with electricity consumption less than 1,000 KWh per billing cycle ( Minimum Usage Fee ); (iv) a two hundred dollar ($200) Early Termination Fee if Customer cancels this Agreement prior to the end of the Term (see Section V(A) herein); (v) a Disconnection/Reconnection Fee of seventy five dollars ($75) each instance when Customer s service is suspended or disconnected (see Section VI herein) regardless of whether service is reconnected (see Section VI herein). Any Disconnection/Reconnection Any Disconnection/Reconnection Fee will be collected in addition to the fees and penalties collected by the TDU. C. Changes in Customer s Average Price. 1. Fixed Rate Product. For a Fixed Rate Product, Customer s Average Price shall remain fixed throughout the Term of the Agreement; provided, however, the Average Price may be changed solely to reflect (i) changes to TDU charges; (ii) changes to ERCOT or TRE administrative fees charged to loads; or (iii) changes resulting from federal, state or local laws that impose new or modified fees or costs on REP that are beyond REP s control. The price and terms of this Agreement are based on the laws, rules, tariffs, and protocols in place at the time of execution. If, during the term of this Agreement, the PUCT, ERCOT, the Texas Comptroller s Office or any other government body or agency with jurisdiction over the Texas electricity market or retail electric providers operating in Texas approves changes which impact the cost to provide electricity service to Customer, REP reserves the right to adjust the prices, terms, rates, riders, fees, tariffs or any other charges under this Agreement accordingly in accordance with the PUCT Rules (see PUC SUBST. R (d) online at 2. Variable Rate Product. For a Variable Rate Product (which is REP s default renewal product, as further discussed in Section VII herein), Customer s Average Price may fluctuate on a month-to-month basis and is subject to change in REP s sole discretion based on the fluctuation of wholesale market prices of electricity. If Customer receives REP s Variable Rate Product, Customer may monitor the rates for the Variable Rate Product and view the historical prices of such Product by visiting or calling REP at (713) or Toll-Free at (877) between 8:00 a.m. to 5:00 p.m. CST. III. INVOICING AND PAYMENT A. Monthly Invoices. Following each month during the Term of this Agreement, REP shall provide an invoice to Customer setting forth the net amount of all charges that have accrued during Customer s most recent billing cycle of approximately thirty (30) days, including but not limited to the Average Price and any other fees or charges not included in the Average Price (as more fully described in Section II herein). The amount of Customer s invoice shall be based on Customer s actual electricity usage, as determined by the TDU meter read cycle for the ESI ID at Customer s Services Address(es). If REP does not receive Customer s actual meter reading from the TDU by the time that REP issues an invoice, then Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 3 of 16

3 REP may calculate such invoice based on estimated meter readings. When Customer s actual meter reading is received by REP, then REP shall adjust Customer s account accordingly and state such adjustments on Customer s subsequent invoice. All invoices shall be issued to Customer in writing and delivered via the United States Postal Service, unless both REP and Customer otherwise agree to an electronic invoice in which case invoices shall be delivered to Customer via electronic mail. Written invoices shall be delivered to Customer at the Billing Address specified by Customer in the LOA or at such other address as may be directed by Customer in writing. B. Payment Due Date. Customer agrees to pay all amounts stated in its invoice. Payment of the invoiced amount is due as of the date of the invoice and such payment is past due if not paid within sixteen (16) days following the date of the invoice (unless such day is not a business day, in which case payment shall be due on the next business day) ( Due Date ). If Customer fails to pay any invoiced amount by the Due Date, then unless Customer has otherwise provided a notice of dispute to REP as permitted herein, Customer shall owe REP a one-time fee ( Late Fee ) equal to five (5%) of the past due amount, unless Customer otherwise qualifies to receive a low-income discount as described in Section III(E)(4) herein and the PUCT Rules ( Rate Reduction Program ) (see PUC SUBST. R online at In addition, interest on the invoiced amount shall accrue on each calendar day from the Due Date at a rate equal to the Interest Rate. For purposes of this Agreement, the Interest Rate shall equal the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the highest non-usurious interest rate permitted by law. If Customer disputes all or any portion of an invoice, Customer must provide written notice to REP of such dispute prior to the Due Date of the relevant invoice. Customer s notice of dispute must include substantiation, documentary or otherwise, of the amounts being disputed and an explanation as to why Customer disputes payment of the invoiced amount. Upon receiving Customer s notice of dispute, REP shall promptly investigate such dispute and the Parties shall work together in good faith to resolve such dispute. If, after good faith negotiations, it is determined that Customer owes the disputed amount to REP, then REP shall include such disputed amount on Customer s next following invoice. All disputed amounts that are determined to be payable by Customer after the initial Due Date shall be subject to a Late Fee and shall accrue interest, at a rate equal to the Interest Rate, from the Due Date until the date payment is actually made. Customer acknowledges and agrees that, in addition to the payment of any Late Fee, Customer s failure to pay amounts due and owing on or before the Due Date may result in disconnection of electric service, as further described in Section VI herein. C. Payment Methods. Customer agrees to pay all invoiced amounts to REP on or before the Due Date by one of the following methods: (i) (ii) (iii) (iv) Personal check via mail, addressed to REP at the address stated on Customer s invoice; Bank draft or credit card via REP s automatic payment plan; Bank draft or credit card via telephone by calling REP at (713) or Toll-Free at (877) between 8:00 a.m. to 5:00 p.m. CST; or Bank draft or credit card via REP s online payment option online at Customer shall pay REP a thirty dollar ($30) fee for each returned check and/or electronic or automated payment that was not processed due to insufficient funds ( Insufficient Funds Fee ). Any check and/or electronic or automated transfer that is returned for unavailable or insufficient funds will be considered a non-payment and, as further described in Section VI herein, may lead to a disconnection of Customer s electric service. Customer shall pay a ten dollar ($10) Service Processing Fee for each credit card or bank draft payment made over the phone. For additional details about setting up an automatic payment plan with REP, please contact REP at (713) or Toll-Free at (877) between 8:00 a.m. to 5:00 p.m. CST, or visit REP online at D. Collection of Delinquent Balances. Customer acknowledges and agrees that REP (or anyone acting on behalf of REP) reserves the right to assess and collect from Customer (whether a current or former Customer) any and all costs, fees or charges relating to the collection of delinquent balances, including but not limited to commissions, costs, fees and attorneys fees incurred when recovering outstanding balances through REP s use of a collection agency or attorney. Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 4 of 16

4 E. Alternative Payment Options. Customer should contact REP immediately if Customer is unable to pay its invoice by the Due Date. If Customer contacts REP and indicates its inability to pay or asks for assistance regarding bill payment, REP will inform Customer of all applicable payment options and billing assistance programs available to Customer and the relevant eligibility requirements and procedures to apply for each program. REP currently offers the following programs: 1. Average Payment Plan. REP s average payment plan ( Average Payment Plan ) allows Customer to pay approximately the same electric invoice each month for a twelve (12) month period ( Plan Period ). If Customer enrolls in the program, REP will: (i) review Customer s actual usage history or estimated usage for the previous twelve-month (12-month) period; (ii) multiply such usage by an adjustment factor of twenty-five percent (25%); and (iii) apply Customer s current Average Price to such usage. After calculating Customer s expected invoices for the Plan Period (based on the previous year s usage, as adjusted, and Customer s current Average Price), REP will average all such monthly invoices together in order to reach an average invoice amount that Customer will pay during the Plan Period. Customer s monthly invoices during the Plan Period will show both the actual usage in such month and actual invoice amount, but Customer only will be required to pay the average invoice amount. Any difference between Customer s actual invoice amount and the average invoice amount will also be shown on Customer s invoice each month during the Plan Period. Once each year, REP will calculate the difference between customers actual invoice amounts and average invoice amounts to determine if an over billing or under billing has occurred during the relevant Plan Period. REP will: (i) credit Customer s account with respect to any overbilling during the Plan Period; (ii) charge Customer s account for any amount that was under billed during the Plan Period; and (iii) recalculate Customer s average invoice amount for the upcoming Plan Period based on adjusted Average Prices ( True-Up ). Because REP conducts the True-Up for all customers simultaneously, Customer s initial True-Up may be for a period fewer than twelve (12) months. The Plan does not affect Customer s obligation to pay REP for all actual invoice amounts incurred during the Plan Period. To be eligible for REP s Average Payment Plan, Customer must not be delinquent in any outstanding payments owed to REP. Customer will be ineligible to continue participation in the Average Payment Plan if Customer is delinquent in making payments to REP during the Plan Period. All payments made under the Average Payment Plan are subject to the terms and procedures of this Section II, including REP s right to assess any Late Fees and take collection actions with respect to any late payments by Customer. 2. Payment Assistance Program. REP s Payment Assistance Program may be available to assist Customers that meet certain eligibility requirements, such as severe financial hardship or temporary inability to pay amounts due and owing to REP. REP offers to all Customers the opportunity to contribute voluntarily to the Payment Assistance Program on Customer s invoice in order to assist qualifying Customers. Distributions of funds through the Payment Assistance Program shall not be made to Customers based on race, creed, color, national origin, ancestry, sex, marital status, lawful source of income, disability, familial status, location of Customer in an economically distressed geographical area, or qualification for the Rate Reduction Program (as described herein). 3. Deferred Payment Plan. If Customer is unable to pay an invoice when due, Customer should contact REP to determine whether Customer qualifies for REP s Deferred Payment Plan. Under REP s Deferred Payment Plan, Customer can pay an outstanding invoice in installments that extend beyond the Due Date of Customer s current invoice. Even if Customer is unable to pay its invoice when due, Customer will not be eligible for REP s Deferred Payment Plan if Customer: (i) has been issued more than two (2) Disconnection Notices during the preceding twelve (12) months; or (ii) has received service from REP for less than three (3) months, and Customer lacks (a) sufficient credit or (b) a satisfactory history of payment for electric service from a previous REP (or its predecessor electric utility). Customer will be eligible for REP s Deferred Payment Plan, upon Customer s request, if: (i) the Due Date for Customer s invoice occurs during an extreme weather emergency; or (ii) Customer has been under-billed in the amount of fifty dollars ($50) or more (unless due to theft of service). All Deferred Payment Plans shall be confirmed in writing between REP and Customer, and a copy shall be provided to Customer for its records. If Customer does not abide by the terms of the Deferred Payment Plan, REP may have the right to disconnect Customer s electric service as discussed in Section VI herein. 4. Rate Reduction Program (LITE-UP Program). If Customer receives food stamps or medical assistance (such as Medicaid) from the Texas Health and Human Services Commission ( THHSC ), or if Customer s combined household income does not exceed one hundred twenty-five percent (125%) of federal poverty guidelines, Customer may qualify for the Low-Income Telephone & Electric Utilities Texas Program ( LITE-UP Program ). If Customer Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 5 of 16

5 qualifies under the LITE-UP Program, REP will provide Customer with a low-income discount rate, subject to funding approved by the Texas Legislature. More information regarding the LITE-UP Program, including enrollment guidelines, may be found in the PUCT Rules (see PUC SUBST. R online at For additional information regarding the LITE-UP Program and eligibility requirements, Customer also may contact REP directly. IV. CREDIT REQUIREMENTS AND DEPOSITS A. Credit Requirements. REP may require Customer to demonstrate and maintain satisfactory creditworthiness as a condition of providing electric service to Customer under this Agreement pursuant to REP s internal credit policies applied on a non-discriminatory basis ( Credit Requirements ). Customer authorizes REP to access and use information about Customer in order for REP to review Customer s credit and payment history and determine whether Customer meets REP s Credit Requirements. A Customer will be deemed to have satisfactory credit and meet REP s Credit Requirements if Customer: (i) is 65 years of age or older and is not currently delinquent in payment of any amounts owed to REP; (ii) submits a certification letter to REP prepared by the Texas Council on Family Violence evidencing that Customer is a victim of family violence, in each case as further described in the PUCT Rules (see PUC SUBST. R (a)(4) online at (iii) can demonstrate that it is medically indigent with a household income equal to or less than one hundred fifty percent (150%) of the federal poverty guidelines; or (iv) can demonstrate that Customer has been a customer of any REP or electric utility within the two years prior to the request for electric service, is not delinquent in payment of any such electric service account, and during the previous twelve (12) months of service, Customer was late paying an invoice no more than once. B. Deposit Requirements. A new Customer enrolling with REP may be required to pay an initial deposit prior to initiation of service on the Effective Date if such Customer does not meet REP s Credit Requirements. An existing Customer receiving a new Product from REP also may be required to pay a deposit prior to the initiation of service if Customer fails to maintain REP s Credit Requirements; provided, with respect to existing Customers of REP, a deposit will not be required unless: (i) the average of Customer s actual billings for the last twelve (12) months are at least twice the amount of the original average of the estimated annual billings; and (ii) during the previous twelve (12) months, Customer either was late paying an invoice more than once or had service terminated or disconnected for nonpayment. During the Term of the Agreement, Customer may be required to pay REP an additional deposit to continue to receive electric service if: (i) the average of Customer s actual billings for the last twelve (12) months are at least twice the amount of the original average of Customer s estimated annual billings when Customer initiated service with REP; and (ii) a termination or Disconnection Notice has been issued to Customer or Customer s account has been disconnected within the previous twelve (12) months. REP may require Customer to pay any additional deposit to REP within ten (10) days after REP requests the additional deposit. Failure by Customer to pay the additional deposit within such ten (10) day period may result in subsequent disconnection of Customer s electric service (as further described in Section VI herein). In certain circumstances, Customer may have the right to provide a guarantee in lieu of a cash deposit pursuant to the PUCT Rules (see PUC SUBST. R (i) online at The total amount of all deposits required from a Customer under this Agreement (whether an initial deposit or additional deposit) shall not exceed the greater of: (i) one-fifth (1/5) of Customer s estimated annual billing; or (ii) the sum of Customer s estimated billings for the next two (2) months. Cash deposits shall accrue interest at the rate specified by the PUCT if such deposits are held for more than thirty (30) days. In accordance with the PUCT Rules (see PUC SUBST. R (e)(3) online at if Customer qualifies for the LITE-UP Program, a deposit exceeding fifty dollars ($50) may be made to REP in two (2) equal payments. REP shall refund Customer s deposit: (i) when Customer has not had any late payments for twelve (12) consecutive billings; or (ii) following the closing of Customer s account(s) and the payment of any outstanding Customer invoices, in each case pursuant to the PUCT Rules (see PUC SUBST. R online at If REP no longer is the retail electric provider of record for Customer, REP shall promptly refund the deposit (plus accrued interest) to Customer. V. EARLY TERMINATION, RESCISSION A. Early Termination Fee. When Customer enrolls with REP, Customer elects the applicable Term of this Agreement in the LOA and such Term is also stated in Customer s EFL for its Product(s). If Customer cancels or terminates this Agreement prior to the expiration of such Term (including a switch to a new retail electric provider), then Customer may owe REP an early termination fee ( Early Termination Fee ) which shall be stated in the EFL for Customer s relevant Product(s). The Early Termination Fee for a Fixed Rate Product shall be two hundred dollars ($200). No Early Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 6 of 16

6 Termination Fee shall apply if Customer receives REP s Variable Rate Product, which is only offered by REP as a default renewal product on a month-to-month basis. Notwithstanding the foregoing, if Customer: (i) cancels or terminates this Agreement as the result of a move to another location; and (ii) provides REP with evidence of Customer s move, such as a forwarding address or other reasonable evidence that Customer no longer occupies the Service Address, then Customer will not be obligated to pay REP any Early Termination Fee; provided, however, Customer will remain obligated to pay REP any outstanding amounts then due and owing under the Agreement. B. Right to Rescind Agreement. IF CUSTOMER SWITCHES TO REP FROM ANOTHER RETAIL ELECTRIC PROVIDER, THEN CUSTOMER HAS THE RIGHT TO RESCIND THIS AGREEMENT WITHOUT PENALTY WITHIN THREE (3) FEDERAL BUSINESS DAYS AFTER RECEIVING THESE TERMS OF SERVICE. TO CANCEL, CUSTOMER MAY CONTACT REP AS FOLLOWS: (i) (ii) (iii) BY PHONE, 24 HOURS A DAY AND SEVEN DAYS A WEEK, AT (713) OR TOLL-FREE AT (877) ; BY FAX AT (713) ; OR BY AT CUSTOMERSERVICE@BRILLIANTENERGYLLC.COM ANY RESCISSION REQUEST PROVIDED BY FAX OR MUST INCLUDE THE FOLLOWING INFORMATION: (1) CUSTOMER S NAME, ADDRESS AND PHONE NUMBER; (2) CUSTOMER S ACCOUNT NUMBER OR ESI ID NUMBER; AND (3) A STATEMENT THAT CUSTOMER WISHES TO RESCIND THE AGREEMENT. VI. DISCONNECTION In accordance with the terms of this Agreement and the PUCT Rules, REP may request disconnection of Customer s electric service if Customer: (i) fails to pay any undisputed amounts when due pursuant to Section III (or fails to make deferred payment arrangements with REP pursuant to Section III); (ii) fails to pay a deposit to REP when required pursuant to Section IV(B) herein; (iii) violates these Terms and Conditions by using service in a manner that interferes with the electric service of others or the operation of nonstandard equipment (if a reasonable attempt has been made to notify Customer and Customer is provided with a reasonable opportunity to remedy the situation); or (iv) fails to cause its guarantor (as applicable) to pay any guaranteed amount due to REP under this Agreement (if the REP has a written agreement signed by Customer s guarantor which allows for disconnection of the guarantor s service) (the events in (i) through (iv) each a Disconnection Event ), in each case of (i) through (iv) above, if Customer fails to remedy the Disconnection Event on or before the disconnection date stated in the Disconnection Notice that REP provides to Customer. At least ten (10) days prior to disconnecting Customer s service, REP will provide Customer proper notification ( Disconnection Notice ) and an opportunity to avoid disconnection by remedying the Disconnection Event, whether by payment of invoiced amounts, payment of a required deposit or otherwise. For each and every Disconnection Notice rightfully sent to Customer, REP shall charge a ten dollar ($10) Disconnection Notice Fee. Notwithstanding the above, pursuant to the PUCT Rules, REP may immediately disconnect Customer s electric service without giving Customer prior notice under certain limited circumstances, such as the existence of a known dangerous condition on the premises or theft of service (see PUC SUBST. R (d) online at For each instance when service is suspended or disconnected, Customer will be charged a seventy-five dollar ($75) disconnection/reconnection fee ( Disconnection/Reconnection Fee ) by REP (regardless of whether service is actually disconnected or reconnected by the TDU) if: (i) a Disconnection Event is not remedied by Customer on or before the disconnection date stated in the Disconnection Notice; or (ii) if REP is otherwise permitted to immediately disconnect Customer s service in accordance with the PUCT Rules. Such Disconnection/Reconnection Fee charged by REP is in addition to any disconnection and reconnection fees that may be billed by Customer s TDU and passed through to Customer as non-recurring charges (as provided in Section II herein). Upon disconnection of Customer s service: (i) REP shall have the option to terminate this Agreement by notice to Customer; (ii) Customer s account with REP may be deactivated; and (iii) in addition to being responsible to pay REP any outstanding fees and charges incurred by Customer prior to disconnection, Customer may be required to reapply for service with REP and pay a new deposit to reestablish service with REP. If a disconnection of Customer s electric service will create a dangerous or life-threatening condition, Customer may qualify as a Critical Care Residential Customer pursuant to the PUCT Rules (see PUC SUBST. R online at Upon Customer s request, REP will provide to Customer a standardized Critical Care Eligibility Determination Form, which Customer must complete and return to REP. The critical care request will be evaluated and approved by Customer s TDU; provided, Customer may appeal such determination to the TDU. If Customer is not satisfied with the results of such appeal, Customer may file a complaint with the PUCT. If Customer s critical care request is approved, the designation is Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 7 of 16

7 valid for one (1) year, and REP will send Customer a renewal application prior to the expiration of Customer s designation. Qualification as a Critical Care Residential Customer does not relieve Customer of the obligation to pay REP for electric services provided. However, a Critical Care Residential Customer that needs payment assistance should contact REP immediately regarding possible deferred payment options, deferred disconnection of Critical Care Residential Customer s electric service and other assistance that may be offered to the Critical Care Residential Customer (as provided herein and in the PUCT Rules). VII. RENEWAL OF SERVICE If the Term of Customer s Agreement is greater than thirty-one (31) days, REP shall provide to Customer a written contract expiration notice at least thirty (30) days prior to end of Customer s initial Term. Specifically, REP shall provide a written contract expiration notice to Residential Customers at least thirty (30) days, but no more than sixty (60) days, prior to the end of Residential Customer s initial Term, in accordance with the PUCT Rules (see PUC SUBST. R (e) online at At any time after REP sends a contract expiration notice but prior to the expiration of Customer s initial Term, Customer may contact REP to renew the Agreement by negotiating a new Term based on REP s then-current Products. If Customer fails to take action to ensure the continued receipt of retail electric service from REP prior to the expiration of Customer s initial Term, then Customer will continue to be served by REP automatically pursuant to a default renewal product. REP s default renewal product shall be a month-to-month Variable Rate Product (as described in Section II(C)(3) herein), which may be cancelled by Customer at any time without penalty. Nothing herein prevents Customer from negotiating a new Agreement to receive REP s then-existing Products at any time while Customer receives REP s month-tomonth default renewal Variable Rate Product. VIII. REFUSAL OF SERVICE; ANTIDISCRIMINATION REP may refuse to provide service to Customer for one or more of the reasons specified in the PUCT Rules (see PUC SUBST. R (a) online at If REP denies service to Customer, REP shall provide written notice to Customer of the reason(s) that service is denied. However, REP shall not deny service or require a prepayment or deposit for service based on Customer s race, creed, color, national origin, ancestry, sex, marital status, lawful source of income, level of income, disability, familial status, location of a Customer in an economically distressed geographic area, or qualification for low income or energy efficiency service. REP shall not use a credit score, a credit history, or utility payment data as the basis for determining the price for electric service for a Product with a Term of twelve (12) months or less. IX. FORCE MAJEURE If REP is unable to carry out, in whole or in party, its obligations under this Agreement (including the provision of electric service) as the result of Force Majeure, then the obligations of REP hereunder that are affected by Force Majeure shall be excused to the extent and for the duration of such Force Majeure. REP shall take reasonable steps to remedy the cause or effect of the Force Majeure with all reasonable dispatch and resume performance under this Agreement. For purposes of this Agreement, Force Majeure shall mean any act or even that is beyond the reasonable control of, and without the fault or negligence of, REP. Force Majeure includes, but is not limited to, an act of God; labor disturbance; an act by a public enemy; terrorism; war; insurrection; riot; embargo; fire; storm; lightning; flood; explosion; breakage or required maintenance of machinery or equipment; accidents; acts of any court or governmental entity (including but not limited to the PUCT or ERCOT); inability to access the TDU or ERCOT systems; nonperformance by the TDU or ERCOT; nonperformance by any other entity which impacts this Agreement, including but not limited to aggregators, other retail electric providers, qualified scheduling entities and the respective employees and agents of such entities; a curtailment order, regulation, or restriction imposed by governmental, military or lawfully established civil authority; and any other condition beyond the control and without the fault of REP. X. MISCELLANEOUS PROVISIONS A. Notices and Contact Information. Customer s contact information is set forth in the LOA, and REP shall provide all Customer notices to the designees listed by Customer in the LOA. It is Customer s responsibility to contact REP (as provided herein) if any of Customer s contact information changes in order to ensure that Customer continues to receive invoices and other notices from REP that will be provided under this Agreement. Customer may contact REP pursuant to the information set forth below: (i) By Phone: REP s customer service representatives are available by phone at (713) or Toll-Free at (877) on Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m. CST; Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 8 of 16

8 (ii) By Fax: Customer may contact REP via fax at (713) ; (iii) (iv) (v) By Customer may contact REP via electronic mail at By Mail: Customer may send notices or other correspondence to REP at Brilliant Energy, LLC, 800 Wilcrest Dr., Ste. 109, Houston, Texas Customer must send all payments due to REP under this Agreement to Brilliant Energy, LLC, P.O. Box , Dallas, Texas ; or Website: Customer can visit REP s website for general information about REP and Product information online at All notices required to be provided in writing under this Agreement shall be delivered: (i) via ; (ii) by hand delivery; (iii) by United States Postal Service; or (iv) by Federal Express or similar overnight delivery service. All written notices under this Agreement shall be deemed to have been delivered on the date received by the intended recipient of the notice. B. Reporting Outages or Emergencies. To report electric service interruptions, outages, or emergencies, Customer should call the applicable phone for Customer s TDU specified below. Customer also may call REP twenty four (24) hours a day, seven (7) days a week, at (877) Customer s TDU maintains responsibility for the reliability of electricity supply, as set forth in the TDU s tariffs approved by the PUCT. The TDU also is responsible for transmission lines, meters and meter data, and the quality of power entering Customer s Service Address: (i) AEP Texas Central Company ( AEP Central ) at (866) ; (ii) AEP Texas North Company ( AEP North ) at (866) ; (iii) CenterPoint Energy ( CenterPoint ) at (713) or (800) ; (iv) Oncor Electric Delivery Company ( Oncor ) at (888) ; or (v) Texas-New Mexico Power Company ( TNMP ) at (888) C. Customer Complaints. If Customer has any disputes or complaints about REP or this Agreement, Customer may contact REP by using any of the methods provided in Section X(A) above. If Customer is not satisfied with REP s response to such complaint or dispute, Customer may contact the PUCT. Customer shall not be required to pay disputed amounts and Brilliant shall not cease flowing power to Customer while a complaint is pending at the PUCT. Customer may contact the PUCT as follows: Public Utility Commission of Texas Customer Protection Division P.O. Box Austin, Texas Phone: (512) Toll-Free: (888) Fax: (512) address: customer@puc.state.tx.us Internet website address: TTY: (800) D. Spanish Language Requirements. REP shall provide a copy of the Agreement to Customer in English unless Customer otherwise elects in the LOA that it prefers to receive information from REP in Spanish. To receive a copy of this Agreement in Spanish, Customer may contact REP at (713) or Toll-Free at (877) on Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m. CST. E. Limitation on Liability. CUSTOMER AGREES THAT EVENTS OF FORCE MAJEURE MAY RESULT IN INTERRUPTION IN CUSTOMER S SERVICE AND THAT REP WILL NOT BE LIABLE TO CUSTOMER FOR THOSE INTERRUPTIONS. CUSTOMER ALSO AGREES Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 9 of 16

9 THAT: (1) REP IS NOT RESPONSIBLE FOR GENERATING CUSTOMER S ELECTRICITY OR FOR TRANSMITTING OR DISTRIBUTING ELECTRICITY TO CUSTOMER S SERVICE ADDRESS(ES); AND (2) REP IS NOT RESPONSIBLE WITH RESPECT TO ANY THIRD-PARTY SERVICES PROVIDED TO CUSTOMER. TO THE EXTENT THAT EITHER PARTY IS RESPONSIBLE FOR DAMAGES TO THE OTHER PARTY HEREUNDER, THEN, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY SUCH DAMAGES WILL BE LIMITED TO DIRECT ACTUAL DAMAGES AS THE PARTY S SOLE AND EXCLUSIVE REMEDY, AND EACH PARTY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY WILL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER IN TORT, CONTRACT OR OTHERWISE. THESE LIMITATIONS WILL BE WITHOUT REGARD TO CAUSE, INCLUDING THE NEGLIGENCE OF EITHER PARTY. IF AND TO THE EXTENT ANY PAYMENT REQUIRED TO BE MADE PURSUANT TO THIS AGREEMENT IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH PAYMENT IS INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY. F. Representations and Warranties. REP warrants that the electricity sold under this Agreement shall meet the quality standards of Customer s applicable TDU and shall be supplied from a variety of sources. REP MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer represents and warrants that it is entering into this Agreement as principal and not as agent for any third party and that the person signing this Agreement on behalf of Customer (if applicable) has the authority to bind Customer to this Agreement. The Parties each acknowledge and agree that this Agreement shall constitute a forward contract and that REP is a forward contract merchant, as such terms are defined in the United States Bankruptcy Code (see U.S. Bankruptcy Code available online at G. Title, Risk of Loss and Indemnity. Customer shall be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the electricity after it reaches Customer s electric meter. Title to and risk of loss related to the electricity shall transfer from REP to Customer at the point where the TDU facilities interconnect with Customer s meter. Customer shall indemnify, defend, and hold REP harmless from any and all claims for any loss, damage, or injury to persons or property, including without limitation, all consequential, exemplary, or punitive damages arising from or related to any act or incident occurring after title to the electricity has passed to Customer. H. Assignment. This Agreement shall be binding upon and inure to the benefit of, and may be performed by, the successors and assigns of the Parties, except that no assignment, pledge or other transfer of the Agreement by Customer shall operate to release the assignor, pledgor, or transferor of any of its obligations under the Agreement. Customer may not assign this Agreement without the prior written consent of REP, which consent shall not be unreasonably withheld. Notwithstanding any other provision of this Agreement, Customer agrees that REP shall have the right to assign the Agreement, together with all rights and obligations hereunder, to REP s electricity supplier (or such supplier s designee) or to its banks or other lenders in connection with its financing activities, or to any other retail electric provider. Nothing in this provision shall deny REP or Customer any benefits obtained, or relieve them of any obligations, duties, and responsibilities incurred, prior to any assignment of this Agreement pursuant to this Section. I. Amendment. REP may make changes to the terms of this Agreement and/or the price of any Products provided to Customer only in accordance with the PUCT Rules (see PUC SUBST. R (d) online at For changes to Customers terms of service, REP shall provide Customer at least fourteen (14) days prior written notice before the date any change takes effect (unless the change is beneficial to Customer or such notice is not required). If the new terms are not acceptable to Customer, then within fourteen (14) days following the date that REP sends such contract change notice, Customer may terminate this Agreement without penalty by providing notice of such termination to REP. J. Choice of Law and Jurisdiction. This Agreement and all documents related hereto shall be governed by, interpreted, construed, and enforced in accordance with the laws of the State of Texas, without regard to principles of conflicts of laws. Exclusive jurisdiction and venue for any controversy arising from or relating Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 10 of 16

10 to this Agreement will be located in the state courts of Harris County, Texas or the federal courts in the Southern District of Texas having jurisdiction over such action (and each party waives any right to object to venue in this regard). K. Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT. L. No Waiver. No waiver by either Party of any default or nonperformance by the other Party under the Agreement shall operate as a waiver of a future default or nonperformance by such other Party, whether of a like or different character. M. Severability. Should any provision of this Agreement be declared invalid or unenforceable by a court of law or any regulatory body having jurisdiction, such decisions shall not affect the validity or enforceability of the remaining portions of this Agreement, and such remaining portions shall remain in effect as if the Agreement had been executed without the invalid or unenforceable provisions. In the event any provision of this Agreement is declared invalid or unenforceable, the Parties shall promptly negotiate to restore the terms of this Agreement as nearly as possible to its original intent and effect. N. Survival of Obligations. The Parties expressly acknowledge and agree that Sections III, IV, V, VII, X(E), X(G), X(J), and X(K) shall survive the termination or expiration of the Agreement. O. Entire Agreement. This Agreement (and all attachments or documents related thereto) constitute the entire agreement between the Parties relating to the subject matter hereof. Any other agreements, whether written or oral, between the Parties concerning the subject matter of this Agreement are hereby superseded. Brilliant Energy, LLC Residential Fixed Price Electric Service Agreement Version Page 11 of 16