{"id":480,"date":"2014-12-30T17:26:43","date_gmt":"2014-12-30T17:26:43","guid":{"rendered":"http:\/\/providerpower.com\/mainedev\/?page_id=480"},"modified":"2016-11-28T13:48:52","modified_gmt":"2016-11-28T13:48:52","slug":"commercial-terms-service","status":"publish","type":"page","link":"https:\/\/providerpower.com\/maine\/commercial-terms-service\/","title":{"rendered":"Commercial Terms of Service"},"content":{"rendered":"<\/div>

\n

RETAIL GENERATION SERVICE SUPPLY AGREEMENT \u2014 TERMS OF SERVICE<\/p>\n

SECTION 1: RETAIL GENERATION SERVICE<\/h2>\n

1.1 Appointment, Scope and Term.<\/strong> Customer hereby appoints and designates Electricity Maine as its Competitive Electricity Provider (\u201cCEP\u201d) for the Customer Accounts listed on the Confirmation attached hereto for the Term. Electricity Maine will perform all the\u00a0functions of a CEP, and subject to the terms of the Confirmation, Electricity Maine will sell and\u00a0provide to Customer and Customer shall purchase and receive for each Account retail Generation\u00a0Service for the full usage requirements of such Account from the Switch Date and continuing\u00a0thereafter until the date of the reading of the meter(s) for such Account(s) first occurring on or\u00a0after the final day of the Term for such Account as specified in the Confirmation (the \u201cTerm\u201d).\u00a0The purchase and sale of energy hereunder shall commence at 00:00:01 EST on the first day that\u00a0Electricity Maine provides physical delivery to your facilities and shall end at 24:00:00 EST on\u00a0the last day of the term. This Agreement is for retail Generation Service and not for transmission\u00a0or distribution service. Any conflict between the terms and conditions of this Agreement and the\u00a0terms and conditions in an applicable Confirmation shall be resolved in favor of the Confirmation.<\/p>\n

1.2 Meter Usage Information.<\/strong> Customer expressly authorizes Electricity Maine to\u00a0act as Customer\u2019s agent to obtain advanced metering information (AMI) and historical usage\u00a0information for any Customer Account listed in the Confirmation.<\/p>\n

1.3 Net Metering.<\/strong> This Agreement is not applicable to Customer Accounts that are\u00a0subject to Net Metering, unless and until Customer enters into an additional contract to be signed\u00a0with Electricity Maine to cover specific payment arrangements for excess payment of power\u00a0purchased over historical account usages at time of enrollment, as well as an ACH agreement for
\nautomatic drafting of such excess payment amounts.<\/p>\n

SECTION 2: RETAIL GENERATION SERVICE CHARGES<\/h2>\n

2.1 Fixed Generation Service Energy Price.<\/strong> Customer shall pay Electricity Maine\u00a0the per kWh Contract Price, as specified in the Confirmation, for the quantity of electric energy\u00a0consumed in a Billing Cycle.
\n2.2 Taxes and Non-Recurring Charges.<\/strong> \u201cTaxes\u201d shall mean all ad valorem,\u00a0property, occupation, utility, gross receipts, sales, use, excise and other taxes, governmental\u00a0charges, emission allowance costs, licenses, permits and assessments, other than taxes based on\u00a0net income or net worth related to the transaction(s) undertaken pursuant to this Agreement.\u00a0Electricity Maine shall pay all Taxes with respect to its sale and delivery of Generation Service\u00a0to Customer up to the Delivery Point specified in the applicable Confirmation. Customer shall\u00a0pay all Taxes with respect to the purchase and receipt of Generation Service from Electricity\u00a0Maine at and from the Delivery Point specified in the applicable Confirmation and after title\u00a0associated with such Generation Service transfers to Customer. Whenever applicable, Customer\u00a0will indemnify Electricity Maine for all Taxes with respect to the purchase and receipt of\u00a0Generation Service whether imposed on Customer or Electricity Maine. Electricity Maine may\u00a0collect such Taxes from Customer by increasing Electricity Maine\u2019s charges for the amount of\u00a0such Taxes. Customer and Electricity Maine will administer and implement this Agreement with\u00a0the intent to minimize Taxes. Customer will provide all requested exemption certificates and\u00a0information and until provided, Electricity Maine will not recognize any exemption. Electricity\u00a0Maine will not refund or credit previously paid Taxes, but will assign to Customer applicable
\nrefund claims.<\/p>\n

SECTION 3: BILLING AND PAYMENT<\/h2>\n

3.1 Billing and Payment.<\/strong> All charges for the Generation Service provided by\u00a0Electricity Maine hereunder shall appear on the invoice issued by Customer\u2019s T&D Utility (a\u00a0\u201cConsolidated T&D Utility Invoice\u201d). Customer shall remit payment for such invoice to the\u00a0T&D Utility within the T&D Utility\u2019s net payment period stated therein, and all invoiced\u00a0balances not paid in full by the due date are subject to the T&D Utility\u2019s late payment policies\u00a0and procedures, including assessment by the T&D Utility of late payment fees and interest.\u00a0Customer agrees to accept the measurements of electricity consumed by the Customer as
\ndetermined by the T&D Utility for purposes of accounting for the electric power supplied under\u00a0this Supply contract. Electricity Maine reserves the right to change billing methods, including\u00a0direct billing to Customer.<\/p>\n

SECTION 4: EARLY TERMINATION<\/h2>\n

4.1 Early Termination.<\/strong> In the event that either Party terminates this Agreement\u00a0prior to the end of the applicable Term, such early termination shall be considered an Event of\u00a0Default as defined in Section 7.1 below, unless otherwise excused or provided for by this\u00a0Agreement. Upon any such early termination by either Party, the defaulting Party shall be liable\u00a0to the non-defaulting Party for Early Termination Damages, as defined herein.
\n4.2 Cancellation for Material Change.<\/strong> If a Material Change, as defined herein,\u00a0occurs (unless Electricity Maine, in its sole discretion, agrees in writing otherwise with Customer\u00a0or Customer unilaterally fully remedies the condition giving rise to the Material Change within\u00a0the below referenced 10 day period), in addition to any other remedies set forth herein,\u00a0Electricity Maine reserves the right to pass through any additional costs related to the Material\u00a0Change to the Customer. If the Customer does not accept the change in costs as the result of the\u00a0Material Change, then Electricity Maine may terminate this Agreement as to the affected\u00a0Account(s) upon 10 days prior written notice to Customer without penalty or Early Termination\u00a0Damages.<\/p>\n

SECTION 5: NOTICES<\/h2>\n

5.1 General Notice.<\/strong> Except as otherwise required by applicable law, all notices to be\u00a0provided under this Agreement to a Party shall be deemed to have been duly delivered if hand\u00a0delivered, delivered by e-mail with return receipt confirmation, or sent by United States, certified\u00a0or registered mail, return receipt requested, postage prepaid, facsimile, or by overnight delivery
\nservice. Notice by e-mail, facsimile or hand delivery shall be effective on the day actually\u00a0received, notice by overnight United States mail or courier shall be effective on the next business\u00a0day after it is sent, and notice by U.S. Mail shall be effective on the third day after it is sent.\u00a0Notices to a Party shall be sent to the applicable address set forth below, or any other address
\nsuch Party provides to the other Party in writing:<\/p>\n

If to Electricity Maine:<\/strong>
\nElectricity Maine, LLC
\n12140 Wickchester Lane Suite 100
\nHouston, TX 77079
\n866.573.2674 (phone)
\n855.558.8480 (fax)
\nE-mail: businesspricing@electricityme.com
\nAttention: Commercial Accounts<\/p>\n

SECTION 6: COPY OF CURRENT INVOICE<\/h2>\n

Customer agrees that in order to facilitate enrollment, a copy of an invoice issued within the last three (3) months by Customer\u2019s current Generation Service provider (or issued by Customer\u2019s T&D Utility in the event Customer is a Standard Offer customer or receives Consolidated T&D Utility Invoices for Generation Service), for each Account shall be attached to this Agreement upon its execution by Customer.<\/p>\n

SECTION 7: DEFAULT AND REMEDIES<\/h2>\n

7.1 Events of Default.<\/strong> An event of default (\u201cEvent of Default\u201d) means: (a) the\u00a0failure of the Customer to make, when due, any payment required under this Agreement and\u00a0such failure continues for more than 10 days following such due date; or (b) any representation\u00a0or warranty made by the applicable Party proves to be false or misleading in any material\u00a0respect; or (c) the failure of the applicable Party to perform its obligations under this Agreement\u00a0and such failure is not excused by Force Majeure; (d) the failure of the Customer to accept a\u00a0change in cost as the result of the Material Change; or (e) the applicable Party (i) makes an\u00a0assignment or any general arrangement for the benefit of creditors; or (ii) files a petition or\u00a0otherwise commences, authorizes or acquiesces to a bankruptcy proceeding or similar\u00a0proceeding for the protection of creditors, or have such petition filed against it; or (iii) otherwise\u00a0becomes insolvent; or (iv) is unable to pay its debts as they fall due.
\n7.2 Notice of Default.<\/strong> The Non-Defaulting Party shall provide written notice of\u00a0an Event of Default to the Defaulting Party. Such notice of an Event of Default shall become\u00a0effective thirty (10) days after receipt by the Non-Defaulting Party.<\/p>\n

7.3 Remedies upon an Event of Default.<\/strong> If an Event of Default described in\u00a0Section 7.1(a), (b), (c), or (d) above occurs under this Agreement with respect to a Defaulting\u00a0Party, the Non-Defaulting Party shall have the right to: (i) designate a day, no earlier than the day\u00a0such notice is effective and no later than twenty (20) days after such notice is effective, as an early\u00a0termination date (\u201cEarly Termination Date\u201d) to liquidate and terminate any and all related\u00a0transactions hereunder; (ii) to withhold any payments due to the Defaulting Party under this\u00a0Agreement; and\/or (iii) immediately suspend performance upon \u00a0written notification to the Defaulting Party. Upon the occurrence of any Event of Default described in Section 7.1(e) as it\u00a0may apply to any Party, this Agreement will automatically terminate, without notice, and without\u00a0any other action by either Party as if an Early Termination Date had occurred on the day prior to \u00a0the occurrence of the Event of Default described in Section 7.1(e). In the event the Non-Defaulting\u00a0Party elects to terminate this Agreement, it shall calculate, in a commercially reasonable manner, a\u00a0Settlement Amount for this Agreement effective as of the Early Termination Date (or, to the\u00a0extent that in the reasonable opinion of the Non-Defaulting Party certain of such related\u00a0transactions, if applicable, are commercially impracticable to liquidate and terminate or may not\u00a0be liquidated and terminated under applicable law on the Early Termination Date, as soon\u00a0thereafter as is reasonably practicable). The Non-Defaulting Party shall aggregate all Settlement\u00a0Amounts resulting from the termination of this Agreement into a single net amount (the\u00a0“Termination Payment”) payable by one Party to the other. In lieu of calculating and aggregating\u00a0all Settlement Amounts, Electricity Maine in its sole discretion shall have the option of electing\u00a0a liquidated Termination Payment of $500.00. The Termination Payment shall be due to or due\u00a0from the Non-Defaulting Party as appropriate. The notice shall include a written statement\u00a0explaining in reasonable detail the calculation of such amount. The Termination Payment shall be\u00a0made by the Party that owes it within two (2) Business Days after receipt of such notice. If the\u00a0Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in\u00a0whole or in part, the Defaulting Party shall, within two (2) Business Days of receipt of\u00a0Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting\u00a0Party a detailed written explanation of the basis for such dispute.<\/p>\n

7.4 Setoff.<\/strong> Without limiting its rights under this Agreement, after an Event of Default,\u00a0the Non-Defaulting Party may set off any or all amounts the Defaulting Party owes to it against\u00a0any or all amounts it owes the Defaulting Party (whether under this Agreement or otherwise and\u00a0whether or not then due), provided that any amount not then due that is included in such setoff\u00a0shall be discounted to present value to take in account the period between the date of setoff and\u00a0the date on which such amount would have otherwise been due. This Section 7.4 shall be without prejudice and in addition to any right of setoff, combination of accounts, lien or other\u00a0right to which any Party is at any time otherwise entitled (whether by operation of law, contract or\u00a0otherwise).<\/p>\n

7.5 Transfer to Standard Offer Service.<\/strong> Without limiting any rights under this\u00a0Agreement, including Customer\u2019s responsibility for all balances owed to Electricity Maine,\u00a0Electricity Maine has the right after an Event of Default and termination of this Agreement to\u00a0automatically transfer Customer to Standard Offer Service.<\/p>\n

SECTION 8: CONFIDENTIALITY<\/h2>\n

Each Party shall keep confidential and not disclose (except as required by law) any\u00a0Confidential Information, as defined below, to a third party (i.e., a party other than the Party\u2019s\u00a0affiliates, employees, lenders, counsel, accountants, advisors or prospective assignees who have\u00a0a need to know such information and have agreed to keep such information confidential) which\u00a0is disclosed to such Party (the \u201cReceiving Party\u201d) by the other Party (the \u201cDisclosing Party\u201d).\u00a0\u201cConfidential Information\u201d means the terms of this Agreement and any other information in\u00a0written or other tangible form which is so marked when it is disclosed to the Receiving Party,\u00a0except that Confidential Information shall not include information which (a) is available to the\u00a0public; (b) becomes available to the public other than as a result of a breach by the Receiving Party of its obligations hereunder; (c) was known to the Receiving Party prior to its disclosure by\u00a0the Disclosing Party; or (d) becomes known to the Receiving Party thereafter other than by\u00a0disclosure by the Disclosing Party. The Parties shall be entitled to all remedies available at law or
\nin equity to enforce, or seek relief in connection with, this confidentiality obligation; provided, all\u00a0monetary damages shall be limited to direct actual damages and a breach of this section shall not\u00a0give rise to a right to suspend or terminate this Agreement. The provisions of this Section 8 shall\u00a0apply regardless of fault and shall survive termination, cancellation, suspension, completion or\u00a0expiration of this Agreement.<\/p>\n

SECTION 9: REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENT<\/h2>\n

9.1 Mutual Representations and Warranties<\/strong>. As a material inducement to entering\u00a0into this Agreement, each Party, with respect to itself, represents and warrants to the other Party\u00a0that: (a) it is duly organized, validly existing and in good standing under the laws of the\u00a0jurisdiction of its formation and is qualified to conduct its business in those jurisdictions\u00a0necessary to perform this Agreement; (b) the execution, delivery and performance of this\u00a0Agreement are within its powers, have been duly authorized by all necessary action, and do not\u00a0violate any of the terms or conditions in its governing documents or any contract to which it is a\u00a0party or any law applicable to it; (c) as of the date sales of retail Generation Service by\u00a0Electricity Maine to the Customer pursuant to this Agreement commences, it shall have all\u00a0regulatory authorizations necessary for it to legally perform its operations; (d) this Agreement\u00a0constitutes a legal, valid and binding obligation of the Party and is enforceable against it in\u00a0accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws\u00a0affecting creditor\u2019s rights generally, and with regard to equitable remedies, subject to the\u00a0discretion of the court before which proceedings to obtain same may be pending; (e) there are no\u00a0bankruptcy, insolvency, reorganization, receivership or other similar proceedings pending or\u00a0being contemplated by it, or to its knowledge threatened against it; (f) there are no suits,\u00a0proceedings, judgments, rulings or orders by or before any court or any Governmental Authority\u00a0or quasi Governmental Authority that could materially adversely affect its ability to perform this\u00a0Agreement; and (g) each Party has read this Agreement and fully understands its rights and\u00a0obligations under this Agreement, and has had an opportunity to consult with an attorney of its own\u00a0choosing to explain the terms of this Agreement and the consequences of signing it.
\n9.2 Other Representations and Warranties.<\/strong> Customer additionally represents and\u00a0warrants to Electricity Maine that: (a) it is not a residential customer; and (b) as of the Effective\u00a0Date and throughout the Term, there shall be no other contract for the purchase of retail\u00a0Generation Service by Customer for the Account(s), or, if such a contract presently exists, it will\u00a0terminate prior to the delivery of retail Generation Service to the Customer under this\u00a0Agreement.
\n9.3 Forward Contract.<\/strong> The Parties acknowledge and agree that (a) this Agreement\u00a0constitutes a forward contract within the meaning of the United States Bankruptcy Code\u00a0(\u201cCode\u201d); (b) Electricity Maine is a forward contract merchant; and (c) each Party is entitled to\u00a0the applicable rights under, and the applicable protections afforded by, the Code.<\/p>\n

 <\/p>\n

SECTION 10: DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITIES;
\nINDEMNITY<\/h2>\n

10.1 Limitations of Liability.<\/strong> LIABILITIES NOT EXCUSED BY REASON OF\u00a0FORCE MAJEURE OR OTHERWISE SHALL BE LIMITED TO DIRECT ACTUAL\u00a0DAMAGES. ELECTRICITY MAINE WILL NOT BE LIABLE TO CUSTOMER FOR\u00a0CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR BUSINESS\u00a0INTERRUPTION DAMAGES. THESE LIMITATIONS APPLY WITHOUT REGARD TO\u00a0THE CAUSE OF ANY LIABILITY OR DAMAGE. THE LIABILITY OF ELECTRICITY\u00a0MAINE TO CUSTOMER FOR ANY OBLIGATIONS UNDER OR RELATING TO THIS\u00a0AGREEMENT SHALL BE LIMITED TO A MAXIMUM OF THREE TIMES THE AVERAGE\u00a0MONTHLY EXPECTED PAYMENTS BY CUSTOMER TO ELECTRICITY MAINE\u00a0PURSUANT TO THIS AGREEMENT. THERE ARE NO THIRD PARTY BENEFICIARIES\u00a0TO THIS AGREEMENT.
\n10.2 Force Majeure.<\/strong> Electricity Maine will make commercially reasonable efforts to\u00a0provide Generation Service, but does not guarantee a continuous supply of electricity. Force\u00a0Majeure Events may result in interruptions in service, and Electricity Maine will not be liable for\u00a0any such interruptions. Electricity Maine does not (and will not pursuant to this Agreement)\u00a0transmit or distribute electricity. For purposes of this Agreement, \u201cForce Majeure Events\u201d\u00a0include, without limitation, acts of God, acts of any Governmental Authority or quasi\u00a0Governmental Authority, accidents, strikes, labor troubles, required maintenance work, inability\u00a0to access the local T&D Utility system, non-performance or interuption in service by the local\u00a0T&D Utility, changes in laws, rules or regulations of any Governmental Authority or quasi\u00a0Governmental Authority, sabotage; explosions; accidents affecting machinery or power lines;\u00a0lightning; earthquakes; fires; storms; tornadoes, floods, failure of transmission or distribution,\u00a0failure of generation, acts of a public enemy; and the direct or indirect effect of governmental\u00a0orders, actions or interferences (so long as the Claiming Party has not applied for, assisted in, or\u00a0failed to reasonably oppose such government action) or any other cause beyond a Party\u2019s control.\u00a0Nothing herein shall require a Party to make a capital expenditure to cure a Force Majeure Event\u00a0or to settle any strike or labor dispute. Force Majeure Events shall not include any inability to\u00a0perform for financial reasons or any change in Customer\u2019s requirements for Generation Service.\u00a0If either Party is rendered unable by Force Majeure to carry out, in whole or part, its obligations\u00a0under this Agreement, such Party shall give notice and provide full details of the event to the\u00a0other Party in writing as soon as practicable after the occurrence of the event. During such Force\u00a0Majeure period, the obligations of the Parties (other than the obligation to make payments then\u00a0due or becoming due with respect to performance prior to the event) will be suspended to the\u00a0extent required. The Party claiming Force Majeure will make all reasonable attempts to remedy\u00a0the effects of the Force Majeure and continue performance under this Agreement with all\u00a0reasonable dispatch; provided, however, that no provision of this Agreement shall be interpreted to\u00a0require Electricity Maine to deliver, or Customer to receive, electric energy at points other than the\u00a0Delivery Point(s). Force Majeure shall not include (a) Customer’s decision to shut down, sell or\u00a0relocate its facilities or (b) economic loss due to Customer’s loss of markets or suppliers.
\n10.3 Disclaimer.<\/strong> THE RETAIL GENERATION SERVICE SOLD UNDER THIS\u00a0AGREEMENT WILL MEET THE QUALITY STANDARDS OF THE APPLICABLE LOCAL\u00a0T&D UTILITY AND WILL BE SUPPLIED FROM A VARIETY OF SOURCES.\u00a0ELECTRICITY MAINE MAKES NO REPRESENTATIONS, WARRANTIES OR OTHER\u00a0ASSURANCE OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND ELECTRICITY MAINE EXPRESSLY DISCLAIMS AND HEREBY NEGATES ALL\u00a0OTHER REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE, WRITTEN OR
\nORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION,\u00a0WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR\u00a0PURPOSE.
\n10.4 Indemnity.<\/strong> Each Party (the \u201cIndemnifying Party\u201d) shall indemnify, defend and\u00a0hold harmless the other Party from and against any and all claims, demands, suits, losses,\u00a0damages, liabilities, costs and expenses (including reasonable attorneys\u2019 fees and costs of\u00a0investigation) for damage to property owned by any third party and bodily injury to or death of\u00a0persons (other than the employees of either Party, as to which each Party shall remain\u00a0responsible for its employees) to the extent caused by the negligence or willful misconduct of the\u00a0Indemnifying Party in connection with the execution of the terms and provisions contained in\u00a0this Agreement or arising from or out of any event, circumstance, act or incident first occurring or\u00a0existing during the period when control and title to electric energy is vested in such Party as\u00a0provided in Section 11.2. The indemnification obligations of each Party under this Section 10.4\u00a0shall not be limited in any manner by the existence, non-existence or any amount of insurance or\u00a0by the amount or types of damages.<\/p>\n

SECTION 11: RENEWAL; TITLE; SELECTION OF ALTERNATE CEP<\/h2>\n

11.1 Automatic Renewal.<\/strong> At least thirty (30) calendar days prior to the end of the\u00a0Term of this Agreement, Electricity Maine will provide Customer a renewal Confirmation,\u00a0which sets forth the Contract Price and Term that will apply to the Renewal Period. Customer\u00a0will have ten (10) business days from receipt of a renewal Confirmation to decline automatic\u00a0renewal in writing and terminate the Agreement without default effective at the end of the\u00a0current Term. If Customer does not notify Electricity Maine in writing within ten (10) business\u00a0days of its intent to decline automatic renewal of the Agreement, then the Renewal Period shall\u00a0be in effect through the Term stated in the renewal Confirmation and the renewal Confirmation\u00a0shall be incorporated into this Agreement by reference.
\n11.2 Title.<\/strong> Title to and risk of loss with respect to electricity provided by Electricity\u00a0Maine shall pass to Customer at the Delivery Point. Electricity Maine shall not be responsible or\u00a0liable for any delay caused by the non-performance of any third-party including, without\u00a0limitation, the T&D Utility or for any interruption, failure to deliver or deterioration of any\u00a0transmission or distribution services.
\n11.3 Selection of Alternate CEP.<\/strong> Upon termination of this Agreement, Customer\u00a0shall elect an alternate CEP (which may include the Standard Offer Provider). If Customer fails\u00a0to elect an alternate CEP, Customer shall receive retail Generation Service from the Standard\u00a0Offer Provider, pursuant to the Standard Offer rules of the Maine Public Utilities Commission.<\/p>\n

SECTION 12: MISCELLANEOUS PROVISIONS<\/h2>\n

12.1<\/strong> This Agreement shall be binding upon and inure to the benefit of each Party and\u00a0upon their respective successors and permitted assigns.
\n12.2<\/strong> The Parties expressly acknowledge that this Agreement is not to be relied upon by\u00a0third parties and that it carries with it no precedential value and should not be construed to create any duty, obligation or standard of care with reference to any liability to any person or entity\u00a0who is not a party to this Agreement.
\n12.3<\/strong> Except as provided by the automatic renewal provisions of Section 11.1, this\u00a0Agreement may not be altered, amended, modified or otherwise changed in any respect\u00a0whatsoever except by a writing duly executed by each Party.
\n12.4<\/strong> This Agreement shall be governed by, construed under and interpreted in\u00a0accordance with the laws of the State of Maine, without reference to its principles of conflicts of\u00a0laws, as it exists on the Effective Date.
\n12.5<\/strong> Each person who signs this Agreement on behalf of a Party represents and\u00a0warrants that he or she has the authority to sign this Agreement on behalf of such Party.
\n12.6<\/strong> This Agreement may be executed in counterparts with the same effect as if the\u00a0signatures hereto and thereto were upon the same instrument. Each counterpart will be deemed\u00a0an original, which taken together shall constitute a single agreement.
\n12.7<\/strong> This Agreement or any uncertainty or ambiguity therein shall not be construed\u00a0against any one Party but rather shall be construed as if both Parties jointly prepared this\u00a0Agreement.
\n12.8<\/strong> This Agreement and any Appendix or Exhibits attached hereto and any\u00a0Confirmations executed in accordance with this Agreement constitute the entire agreement\u00a0between the Parties with respect to the subject matter hereof and supersedes in their entirety any\u00a0and all previous understandings, commitments, statements or assurances, oral or written, with
\nrespect to the subject matter hereof.
\n12.9<\/strong> Customer may assign this Agreement, in whole or in part, or any of its rights or\u00a0obligations hereunder only with the prior written consent of Electricity Maine. Electricity Maine\u00a0may, without Customer\u2019s further consent, to the fullest extent allowed by law: (a) transfer, sell,\u00a0pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in\u00a0connection with any financing or other financial arrangement; (b) transfer or assign this\u00a0Agreement to an affiliate of Electricity Maine; (c) transfer or assign this Agreement to any\u00a0person or entity succeeding to all or substantially all of the assets of Electricity Maine; and\/or (d)\u00a0transfer or assign the Agreement to a licensed CEP, and by execution of this Agreement,\u00a0Customer hereby gives its affirmative authorization and consent to any such transfer or\u00a0assignment contemplated in clauses (a), (b), (c) and (d). In the case of clauses (b), (c) or (d)\u00a0preceding, any such assignee shall agree in writing to be bound by the terms of this Agreement.
\nUpon any such assignment, Customer agrees that Electricity Maine shall have no further\u00a0obligations under this Agreement.
\n12.10<\/strong> The invalidity or unenforceability of any of the covenants, provisions or clauses\u00a0in this Agreement will not affect the remaining portions of the this Agreement, and this\u00a0Agreement will be construed as if such invalid covenant, provision or clause had not been\u00a0originally contained in this Agreement.
\n12.11<\/strong> No waiver of any provision of this Agreement or default thereunder will be\u00a0deemed to be or will constitute a waiver of any other provision or other default, nor will such a waiver constitute a continuing waiver unless otherwise expressly stated and agreed to by the\u00a0Parties in writing.
\n12.12<\/strong> Customer affirmatively waives all specific contract provisions or requirements\u00a0otherwise mandated for non-commercial and non-industrial customers by the Maine Public\u00a0Utilities Commission.<\/p>\n

 <\/p>\n

12.13<\/strong> Each Party agrees to promptly execute and deliver, at the expense of the Party\u00a0requesting such action, any and all other and further instruments and documents which may be\u00a0reasonably requested in order to effectuate the transactions contemplated hereby.
\n12.14<\/strong> In the event of an emergency, outage or service need, Customer must call their\u00a0respective T&D Utility for the Account(s) experiencing the emergency, outage or service at the\u00a0following numbers:
\nCentral Maine Power: 800.696.1000
\nBangor Hydro Electric: 800.440.1111 or 207.973.2020<\/p>\n

 <\/p>\n

12.15<\/strong> Customer may contact Electricity Maine if Customer has specific comments,\u00a0questions, disputes, or complaints at 866.573.2674, Monday to Friday 8:00 a.m. \u2013 5:00 p.m.\u00a0EST, or the Maine Public Utilities Commission at 207.287.3831 or 800.452.4699.
\n12.16<\/strong> In the event of any litigation arising out of or connected in any manner with this\u00a0Agreement, any action to collect any amounts that become due to Electricity Maine from Customer pursuant to the terms hereof or any action brought by a Party to enforce its rights and\u00a0remedies hereunder, the non-prevailing Party (or Customer with respect to such collection\u00a0actions) shall pay the costs of the prevailing Party (or Electricity Maine with respect to such\u00a0collection actions), including its reasonable attorneys\u2019 and other legal fees and expenses incurred\u00a0in connection therewith through and including the costs of appeals and appellate costs relating\u00a0thereto. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY\u00a0WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN\u00a0RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY\u00a0ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS\u00a0CONTEMPLATED BY THIS AGREEMENT.
\n12.17<\/strong> This Agreement shall constitute an offer for retail Generation Service, and this\u00a0Agreement is expressly conditioned on acceptance of this Agreement by Electricity Maine,\u00a0which acceptance shall be evidenced by (and only by) Electricity Maine\u2019s execution of this\u00a0Agreement. Electricity Maine may refuse to provide retail Generation Service to Customer\u00a0subject to the requirements of applicable law.
\n12.18<\/strong> Each Party consents to the recording of all telephone conversations between its\u00a0employees and the employees of the other Party. Any such recordings may be introduced to\u00a0prove the intent of a transaction; provided, however, that nothing herein shall be construed as a\u00a0waiver of any objection to the introduction of such evidence on the grounds of relevance.\u00a0Absent manifest error, any conflict between such a recording and written documentation that is\u00a0executed by both Parties shall be resolved in favor of such written documentation.
\n12.19<\/strong> All indemnity rights will survive the termination of this Agreement. All\u00a0obligations provided in this Agreement will remain in effect for the purpose of complying herewith.<\/p>\n

 <\/p>\n

12.20<\/strong> Although all rates shown on Electricity Maine\u2019s website and promotional\u00a0materials have been rounded to the nearest hundredth of a cent for clarity, Electricity Maine will\u00a0bill Customer the rate in cents per kilowatt hour (“kWh”) set forth in the Confirmation attached\u00a0hereto for Customer\u2019s actual consumption of electricity.
\n12.21<\/strong> Electricity Maine makes the following disclosure of risks and costs associated\u00a0with real-time or indexed electricity products. Maine regulations require that electricity\u00a0suppliers, brokers and aggregators provide the following disclosure to customers regarding\u00a0electricity products in which the prices paid by consumers vary with changes in wholesale\u00a0electricity prices, other energy prices, or an energy price index.\u00a0Volatility Risk: Electricity prices may be subject to substantial volatility based on\u00a0economic conditions, fuel prices, seasonal electricity demands, generator outages, weather and\u00a0other factors.\u00a0Future Performance: Past results regarding particular electricity products are not\u00a0necessarily an indication of future results.
\n12.22<\/strong> When Customer first applies for service and during the term of this Agreement,\u00a0Electricity Maine may contact a credit reporting agency to obtain utility credit history and credit\u00a0score. Once enrolled, Electricity Maine reserves the right to report Customer\u2019s payment history\u00a0to a credit reporting agency.
\n12.23<\/strong> Information disclosure labels are available on Electricity Maine\u2019s website at\u00a0http:\/\/www.electricityme.com\/portals\/1\/EMEDisclosureLabelJan2013.pdf .<\/p>\n

SECTION 13. DEFINITIONS<\/h2>\n

As used in this Agreement, the following terms have the indicated meanings:<\/p>\n

 
\n13.1<\/strong> \u201cAccount\u201d means each account identified on the Confirmation.<\/p>\n

 
\n13.2<\/strong> \u201cActual Usage\u201d means as to an Account and the applicable Billing Period, the\u00a0actual amount of electric energy (in kWh) used as determined by the T&D Utility based on the\u00a0reading of the meter(s) comprising such Account.<\/p>\n

 
\n13.3<\/strong> \u201cBankrupt” means with respect to any entity, such entity (i) files a petition or\u00a0otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of\u00a0action under a bankruptcy, insolvency, reorganization or similar law, or has any such petition\u00a0filed or commenced against it, (ii) makes an assignment or any general arrangement for the
\nbenefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), (iv) has\u00a0a liquidator, administrator, receiver, trustee, conservator or similar official appointed with\u00a0respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay\u00a0its debts as they fall due.<\/p>\n

 <\/p>\n

13.4<\/strong> \u201cBilling Period” means, for each account, the period between successive\u00a0invoices rendered by either Electricity Maine or the applicable T&D Utility during the applicable\u00a0Term.<\/p>\n

 
\n13.5<\/strong> \u201cBusiness Day” means any day except a Saturday, Sunday, or a Federal Reserve\u00a0Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the\u00a0relevant Party’s principal place of business. The relevant Party, in each instance unless otherwise\u00a0specified, shall be the Party to whom the notice, payment or delivery is being sent and by whom\u00a0the notice or payment or delivery is to be received.<\/p>\n

 
\n13.6<\/strong> \u201cCEP\u201d means Competitive Electricity Provider.<\/p>\n

 
\n13.7<\/strong> \u201cClaiming Party\u201d means the Party claiming an event of Force Majeure.<\/p>\n

 
\n13.8<\/strong> \u201cContract Price\u201d means the price in U.S. dollars as specified in an applicable\u00a0Confirmation.<\/p>\n

 
\n13.9<\/strong> \u201cCosts\u201d means, with respect to the Non-Defaulting Party, brokerage fees,\u00a0commissions and other similar third party transaction costs and expenses reasonably incurred by\u00a0such Party entering into new arrangements that replace a terminated Transaction; and all\u00a0reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with\u00a0the termination of a transaction.<\/p>\n

 
\n13.10<\/strong> \u201cEarly Termination Damages\u201d means, for a particular Account, an amount\u00a0equal to the sum of the present value (using a discount rate equal to the prime rate charged by the\u00a0non-defaulting Party\u2019s primary bank) of the loss of market value, if any, resulting from the\u00a0termination of this Agreement with respect to such Account, and all other Costs, charges,\u00a0penalties and Taxes incurred by the non-defaulting Party, or collectible from the defaulting\u00a0Party, in connection with such termination (reasonably estimated if necessary) including, but not\u00a0limited to, all Costs and charges incurred in order to determine the Early Termination Damages\u00a0and to enforce the non-defaulting Party\u2019s rights and remedies in the collection of such damages.
\nThe non-defaulting Party shall determine the loss of market value of the affected Account by\u00a0reference to the number of units of Generation Service that Customer would have consumed\u00a0during the Termination Period, relevant market information and indices (such as daily and\u00a0monthly indices, settlement prices of futures contracts and gas exchange prices and quotations
\nfrom leading dealers in energy contracts or energy trading markets), and the terms and conditions\u00a0under which it would be able to enter into a replacement contract with a third party for the\u00a0Termination Period. However, nothing in the foregoing shall obligate the non-defaulting Party to\u00a0enter into any such replacement contract with a third party. Amounts used for calculating Early\u00a0Termination Damages shall be adjusted for differences in transportation costs where applicable.<\/p>\n

 
\n13.11<\/strong> \u201cEffective Date\u201d the latest of the dates that Customer and Electricity Maine\u00a0execute this Agreement.<\/p>\n

13.12<\/strong> \u201cGains\u201d means with respect to any Party, an amount equal to the present value of\u00a0the economic benefit to it, if any (exclusive of Costs) resulting from the termination of a\u00a0transaction, determined in a commercially reasonable manner.<\/p>\n

 <\/p>\n

13.13<\/strong> \u201cGeneration Service\u201d means the provision of electric power to a retail customer\u00a0through a T&D Utility but does not encompass any activity related to the transmission or\u00a0distribution of that power.<\/p>\n

 
\n13.14<\/strong> \u201cGovernmental Authority” means any federal, state, local, municipal or other\u00a0government, any governmental, regulatory or administrative agency, commission or other\u00a0authority lawfully exercising or entitled to exercise jurisdiction over the Parties or any\u00a0transaction contemplated herein.<\/p>\n

 
\n13.15<\/strong> \u201cGuarantor” means with respect to a Party, an entity providing a guaranty of\u00a0payment in favor of the other Party in a form mutually agreed to by the Parties.<\/p>\n

 
\n13.16<\/strong> \u201cInsolvent\u201d means with respect to any Party, when such Party shall be unable to\u00a0pay liabilities as they mature or such entity shall admit in writing its inability to pay its debts\u00a0generally as they become due.<\/p>\n

 
\n13.17<\/strong> \u201cISO-New England\u201d means the regional transmission organization known as\u00a0\u201cISO New England\u201d that currently coordinates the movement of wholesale electricity in all or\u00a0parts of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.<\/p>\n

 
\n13.18<\/strong> \u201ckWh\u201d means kilowatt-hour.<\/p>\n

13.19<\/strong> \u201cLosses\u201d means with respect to any Party, an amount equal to the present value of\u00a0the economic loss to it, if any (exclusive of Costs), resulting from termination of a transaction in\u00a0a commercially reasonable manner.<\/p>\n

 
\n13.20<\/strong> \u201cMaterial Change\u201d means as to any Account (i) a material change to the electric\u00a0retail service market in which such Account is located, or a material change to the wholesale\u00a0market design, market rules, or administration implemented pursuant to ISO-New England\u00a0protocol revisions; (ii) a change in customer operations that adversely affects the load profile (for
\nsettlement purposes), usage pattern or rate class with respect to such Account; or (iii) any new\u00a0charge or expense imposed on Electricity Maine under applicable law in its obligation as the\u00a0CEP with respect to such Account.<\/p>\n

 
\n13.21<\/strong> \u201cNon-Recurring Charges\u201d means any charges imposed by the T&D Utility on a\u00a0CEP\u2019s non-recurring basis.<\/p>\n

 
\n13.22<\/strong> \u201cSettlement Amount\u201d means, with respect to a transaction and the\u00a0Non-Defaulting Party, the Losses and Costs (or Gains), expressed in U.S. Dollars, that such Party\u00a0incurs as a result of the liquidation, including, but not limited to, Losses and Costs (or Gains)\u00a0based upon the then current replacement value of the transaction together with, at the NonDefaulting\u00a0Party’s option, but without duplication, all Losses and Costs that such Party\u00a0incurs as a result of maintaining, terminating, obtaining or reestablishing any hedge or\u00a0related trading positions pursuant to this Agreement.<\/p>\n

 <\/p>\n

 <\/p>\n

13.23<\/strong> \u201cSwitch Date\u201d means, as to any Account, the time and date on which the\u00a0applicable T&D Utility has completed the process necessary to permit Electricity Maine to\u00a0commence or discontinue providing the services hereunder. The process may include, as\u00a0necessary and without limitation, recognizing Electricity Maine as Customer’s electric supplier; processing and acting on direct access service requests; installation of meters and the final meter\u00a0read date.<\/p>\n

 
\n13.24<\/strong> \u201cT&D Utility\u201d means, whether one or more, the local transmission and\u00a0distribution utility company serving each Account responsible for the transmission and\u00a0distribution of electricity to retail customers it its service territory.<\/p>\n

 
\n13.25<\/strong> \u201cTaxes\u201d means all taxes, assessments, levies, duties, charges, fees and\u00a0withholdings of any kind and all penalties, fines, and additions to tax, and interest thereon that\u00a0are directly related to the services provided under this Agreement and assessed or imposed by\u00a0federal, state, municipal or local government or other authority. By way of example only,\u00a0\u201cTaxes\u201d includes sales tax, miscellaneous gross receipts tax and franchise fees.<\/p>\n

 
\n13.26<\/strong> \u201cTermination Period\u201d means as to an Account the period commencing as of the\u00a0date of termination of this Agreement as to such Account and the end of the Term or (if\u00a0applicable) renewal period.<\/p>\n
\n<\/div><\/section>

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