40ADeemed distribution contracts

40A Deemed distribution contracts (1) A distribution company may from time to time, subject to the conditions of its licence, give notice of terms and conditions applying in respect of the distribution or supply of electricity by the distribution company to retail customers or a class of retail customers. S. 40A(2) amended by No. 62/2001 s. 70(i)(i) (as amended by No. 11/2002 s. 3(Sch. 1 item 23)). (2) The terms and conditions must be approved by the Commission before a notice is given under subsection (1). S. 40A(3) amended by Nos 62/2001 s. 70(i)(i)(ii) (as amended by No. 11/2002 s. 3(Sch. 1 item 23)), 46/2014 s. 3(1), substituted by No. 37/2020 s. 9(1), amended by No. 41/2021 s. 48(1). (3) Subject to subsection (3A), unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with the applicable Code of Practice. S. 40A(3AA) inserted by No. 37/2020 s. 9(1), amended by No. 41/2021 s. 48(2). (3AA) If the applicable Code of Practice is inconsistent with a deemed Ministerial licence condition to which the licence held by the distribution company is subject, that Code of Practice is of no effect to the extent of the inconsistency, and unless the Commission approves otherwise in a particular case, the terms and conditions must not be inconsistent with that deemed Ministerial licence condition. S. 40A(3A) inserted by No. 46/2014 s. 3(2). (3A) The Commission must approve terms and conditions that give effect to or are necessary to comply with an Order made under section 46D. (4) The approved terms and conditions of which notice is given under this section— (a) take effect on the day on which they are published in the Government Gazette; and (b) are binding on the distribution company and the retail customers to which they are expressed to apply. (5) A distribution company and a retail customer are deemed to have entered into a contract on the terms and conditions published under subsection (4) on a date determined in accordance with those terms and conditions. (6) A distribution company may from time to time vary any terms and conditions of which notice is given under this section. (7) This section applies to a variation under subsection (6) in the same manner as it applies to the making, approval and notification of the terms and conditions. (8) A distribution company, subject to the conditions of its licence, and a retail customer may by agreement in writing vary any of the terms and conditions of a deemed contract under subsection (5). (9) A deemed contract under subsection (5) may be terminated in accordance with its terms and conditions. (10) Nothing in this section affects any contract existing immediately before the commencement of section 5 of the **Electricity Industry Acts (Further Amendment) Act 2001** between a distribution company and a retail customer. S. 40A(11) substituted by No. 37/2020 s. 9(2). (11) In this section— S. 40A(11) def. of *applicable Code of Practice* inserted by No. 41/2021 s. 48(3)(a). ***applicable Code of Practice*** means— (a) the document entitled "Electricity Distribution Code" that is taken under section 76(1) of the **Essential Services Commission Act 2001** to be a Code of Practice made under section 47(1) of that Act; or (b) if the Code of Practice referred to in paragraph (a) is revoked, another Code of Practice that applies for the purposes of subsections (3) and (3AA); S. 40A(11) def. of *Electricity Distribution Code* repealed by No. 41/2021 s. 48(3)(b). ***retail customer***, in relation to a distribution company, means a customer of a retailer to which the distribution company distributes or supplies electricity. S. 40B inserted by No. 91/2004 s. 13.