ELECTRICITY NH, LLC d/b/a ENH POWER
RETAIL GENERATION SERVICE SUPPLY AGREEMENT — TERMS OF SERVICE
SECTION 1: RETAIL GENERATION SERVICE
1.1 Appointment, Scope and Term. Customer hereby appoints and designates ENH Power as its Competitive Electric Power Supplier (“CEPS”) for the Customer Accounts listed on the Confirmation attached hereto for the Term. ENH Power will perform all the functions of a CEPS, and subject to the terms of the Confirmation, ENH Power will sell and provide to Customer and Customer shall purchase and receive for each Account retail Generation Service for the full usage requirements of such Account from the Switch Date and continuing thereafter until the date of the reading of the meter(s) for such Account(s) first occurring on or after the final day of the Term for such Account as specified in the Confirmation (the “Term”). The purchase and sale of energy hereunder shall commence at 00:00:01 EST on the first day that ENH Power provides physical delivery to your facilities and shall end at 24:00:00 EST on the last day of the term. This Agreement is for retail Generation Service and not for transmission or distribution service. Any conflict between the terms and conditions of this Agreement and the terms and conditions in an applicable Confirmation shall be resolved in favor of the Confirmation.
1.2 Meter Usage Information. Customer expressly authorizes ENH Power to act as Customer’s agent to obtain advanced metering information (AMI) and historical usage information for any Customer Account listed in the Confirmation.
1.3 Net Metering. This Agreement is not applicable to Customer Accounts that are subject to Net Metering, unless and until Customer enters into an additional contract to be signed with ENH Power to cover specific payment arrangements for excess payment of power purchased over historical account usages at time of enrollment, as well as an ACH agreement for automatic drafting of such excess payment amounts.
SECTION 2: RETAIL GENERATION SERVICE CHARGES
2.1 Fixed Generation Service Energy Price. Customer shall pay ENH Power the per kWh Contract Price, as specified in the Confirmation, for the quantity of electric energy consumed in a Billing Cycle.
2.2 Taxes and Non-Recurring Charges. “Taxes” shall mean all ad valorem, property, occupation, utility, gross receipts, sales, use, excise and other taxes, governmental charges, emission allowance costs, licenses, permits and assessments, other than taxes based on net income or net worth related to the transaction(s) undertaken pursuant to this Agreement. ENH Power shall pay all Taxes with respect to its sale and delivery of Generation Service to Customer up to the Delivery Point specified in the applicable Confirmation. Customer shall pay all Taxes with respect to the purchase and receipt of Generation Service from ENH Power at and from the Delivery Point specified in the applicable Confirmation and after title associated with such Generation Service transfers to Customer. Whenever applicable, Customer will indemnify ENH Power for all Taxes with respect to the purchase and receipt of Generation Service whether imposed on Customer or ENH Power. ENH Power may collect such Taxes from Customer by increasing ENH Power’s charges for the amount of such Taxes. Customer and ENH Power will administer and implement this Agreement with the intent to minimize Taxes. Customer will provide all requested exemption certificates and information and until provided, ENH Power will not recognize any exemption. ENH Power will not refund or credit previously paid Taxes, but will assign to Customer applicable refund claims.
SECTION 3: BILLING AND PAYMENT
3.1 Billing and Payment. All charges for the Generation Service provided by ENH Power hereunder shall appear on the invoice issued by Customer’s T&D Utility (a “Consolidated T&D Utility Invoice”). Customer shall remit payment for such invoice to the T&D Utility within the T&D Utility’s net payment period stated therein, and all invoiced balances not paid in full by the due date are subject to the T&D Utility’s late payment policies and procedures, including assessment by the T&D Utility of late payment fees and interest. Customer agrees to accept the measurements of electricity consumed by the Customer as determined by the T&D Utility for purposes of accounting for the electric power supplied under this Supply contract. ENH Power reserves the right to change billing methods, including direct billing to Customer.
SECTION 4: EARLY TERMINATION
4.1 Early Termination. In the event that either Party terminates this Agreement prior to the end of the applicable Term, such early termination shall be considered an Event of Default as defined in Section 7.1 below, unless otherwise excused or provided for by this Agreement. Upon any such early termination by either Party, the defaulting Party shall be liable to the non-defaulting Party for Early Termination Damages, as defined herein.
4.2 Cancellation for Material Change. If a Material Change, as defined herein, occurs (unless ENH Power, in its sole discretion, agrees in writing otherwise with Customer or Customer unilaterally fully remedies the condition giving rise to the Material Change within the below referenced 10 day period), in addition to any other remedies set forth herein, ENH Power reserves the right to pass through any additional costs related to the Material Change to the Customer. If the Customer does not accept the change in costs as the result of the Material Change, then ENH Power may terminate this Agreement as to the affected Account(s) upon 10 days prior written notice to Customer without penalty or Early Termination Damages.
SECTION 5: NOTICES
5.1 General Notice. Except as otherwise required by applicable law, all notices to be provided under this Agreement to a Party shall be deemed to have been duly delivered if hand delivered, delivered by e-mail with return receipt confirmation, or sent by United States, certified or registered mail, return receipt requested, postage prepaid, facsimile, or by overnight delivery service. Notice by e-mail, facsimile or hand delivery shall be effective on the day actually received, notice by overnight United States mail or courier shall be effective on the next business day after it is sent, and notice by U.S. Mail shall be effective on the third day after it is sent. Notices to a Party shall be sent to the applicable address set forth below, or any other address such Party provides to the other Party in writing:
If to ENH Power:
12140 Wickchester Lane Suite 100
Houston, TX 77079
E-mail: email@example.com Attention: Business Account Manager
SECTION 6: COPY OF CURRENT INVOICE
Customer agrees that in order to facilitate enrollment, a copy of an invoice issued within the last three (3) months by Customer’s current Generation Service provider (or issued by Customer’s T&D Utility in the event Customer is a Default Energy Service 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.
SECTION 7: DEFAULT AND REMEDIES
7.1 Events of Default. An event of default (“Event of Default”) means: (a) the failure of the Customer to make, when due, any payment required under this Agreement and such failure continues for more than 10 days following such due date; or (b) any representation or warranty made by the applicable Party proves to be false or misleading in any material respect; or (c) the failure of the applicable Party to perform its obligations under this Agreement and such failure is not excused by Force Majeure; (d) the failure of the Customer to accept a change in cost as the result of the Material Change; or (e) the applicable Party (i) makes an assignment or any general arrangement for the benefit of creditors; or (ii) files a petition or otherwise commences, authorizes or acquiesces to a bankruptcy proceeding or similar proceeding for the protection of creditors, or have such petition filed against it; or (iii) otherwise becomes insolvent; or (iv) is unable to pay its debts as they fall due.
7.2 Notice of Default. The Non-Defaulting Party shall provide written notice of an Event of Default to the Defaulting Party. Such notice of an Event of Default shall become effective thirty (10) days after receipt by the Non-Defaulting Party.
7.3 Remedies upon an Event of Default. If an Event of Default described in Section 7.1(a), (b), (c), or (d) above occurs under this Agreement with respect to a Defaulting Party, the Non-Defaulting Party shall have the right to: (i) designate a day, no earlier than the day such notice is effective and no later than twenty (20) days after such notice is effective, as an early termination date (“Early Termination Date”) to liquidate and terminate any and all related transactions hereunder; (ii) to withhold any payments due to the Defaulting Party under this Agreement; and/or (iii) immediately suspend performance upon written notification to the Defaulting Party. Upon the occurrence of any Event of Default described in Section 7.1(e) as it may apply to any Party, this Agreement will automatically terminate, without notice, and without any other action by either Party as if an Early Termination Date had occurred on the day prior to the occurrence of the Event of Default described in Section 7.1(e). In the event the Non-Defaulting Party elects to terminate this Agreement, it shall calculate, in a commercially reasonable manner, a Settlement Amount for this Agreement effective as of the Early Termination Date (or, to the extent that in the reasonable opinion of the Non-Defaulting Party certain of such related transactions, if applicable, are commercially impracticable to liquidate and terminate or may not be liquidated and terminated under applicable law on the Early Termination Date, as soon thereafter as is reasonably practicable). The Non-Defaulting Party shall aggregate all Settlement Amounts resulting from the termination of this Agreement into a single net amount (the “Termination Payment”) payable by one Party to the other. In lieu of calculating and aggregating all Settlement Amounts, ENH Power in its sole discretion shall have the option of electing a liquidated Termination Payment of $500.00. The Termination Payment shall be due to or due from the Non-Defaulting Party as appropriate. The notice shall include a written statement explaining in reasonable detail the calculation of such amount. The Termination Payment shall be made by the Party that owes it within two (2) Business Days after receipt of such notice. If the Defaulting Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in part, the Defaulting Party shall, within two (2) Business Days of receipt of Non-Defaulting Party’s calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written explanation of the basis for such dispute.
7.4 Setoff. Without limiting its rights under this Agreement, after an Event of Default, the Non-Defaulting Party may set off any or all amounts the Defaulting Party owes to it against any or all amounts it owes the Defaulting Party (whether under this Agreement or otherwise and whether or not then due), provided that any amount not then due that is included in such setoff shall be discounted to present value to take in account the period between the date of setoff and the 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 right to which any Party is at any time otherwise entitled (whether by operation of law, contract or otherwise).
7.5 Transfer to T&D Utility Default Energy Service. Without limiting any rights under this Agreement, including Customer’s responsibility for all balances owed to ENH Power, ENH Power has the right after an Event of Default and termination of this Agreement to automatically transfer Customer to the T&D Utility Default Energy Service.
SECTION 8: CONFIDENTIALITY
Each Party shall keep confidential and not disclose (except as required by law) any Confidential Information, as defined below, to a third party (i.e., a party other than the Party’s affiliates, employees, lenders, counsel, accountants, advisors or prospective assignees who have a need to know such information and have agreed to keep such information confidential) which is disclosed to such Party (the “Receiving Party”) by the other Party (the “Disclosing Party”). “Confidential Information” means the terms of this Agreement and any other information in written or other tangible form which is so marked when it is disclosed to the Receiving Party, except that Confidential Information shall not include information which (a) is available to the public; (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 the Disclosing Party; or (d) becomes known to the Receiving Party thereafter other than by disclosure by the Disclosing Party. The Parties shall be entitled to all remedies available at law or in equity to enforce, or seek relief in connection with, this confidentiality obligation; provided, all monetary damages shall be limited to direct actual damages and a breach of this section shall not give rise to a right to suspend or terminate this Agreement. The provisions of this Section 8 shall apply regardless of fault and shall survive termination, cancellation, suspension, completion or expiration of this Agreement.
SECTION 9: REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENT
9.1 Mutual Representations and Warranties. As a material inducement to entering into this Agreement, each Party, with respect to itself, represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement; (b) the execution, delivery and performance of this Agreement are within its powers, have been duly authorized by all necessary action, and do not violate any of the terms or conditions in its governing documents or any contract to which it is a party or any law applicable to it; (c) as of the date sales of retail Generation Service by ENH Power to the Customer pursuant to this Agreement commences, it shall have all regulatory authorizations necessary for it to legally perform its operations; (d) this Agreement constitutes a legal, valid and binding obligation of the Party and is enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws affecting creditor’s rights generally, and with regard to equitable remedies, subject to the discretion of the court before which proceedings to obtain same may be pending; (e) there are no bankruptcy, insolvency, reorganization, receivership or other similar proceedings pending or being contemplated by it, or to its knowledge threatened against it; (f) there are no suits, proceedings, judgments, rulings or orders by or before any court or any Governmental Authority or quasi Governmental Authority that could materially adversely affect its ability to perform this Agreement; and (g) each Party has read this Agreement and fully understands its rights and obligations under this Agreement, and has had an opportunity to consult with an attorney of its own choosing to explain the terms of this Agreement and the consequences of signing it.
9.2 Other Representations and Warranties. Customer additionally represents and warrants to ENH Power that: (a) it is not a residential customer; and (b) as of the Effective Date and throughout the Term, there shall be no other contract for the purchase of retail Generation Service by Customer for the Account(s), or, if such a contract presently exists, it will terminate prior to the delivery of retail Generation Service to the Customer under this Agreement.
9.3 Forward Contract. The Parties acknowledge and agree that (a) this Agreement constitutes a forward contract within the meaning of the United States Bankruptcy Code (“Code”); (b) ENH Power is a forward contract merchant; and (c) each Party is entitled to the applicable rights under, and the applicable protections afforded by, the Code.
SECTION 10: DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITIES; INDEMNITY
10.1 Limitations of Liability. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES. ENH POWER WILL NOT BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR BUSINESS INTERRUPTION DAMAGES. THESE LIMITATIONS APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. THE LIABILITY OF ENH POWER TO CUSTOMER FOR ANY OBLIGATIONS UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO A MAXIMUM OF THREE TIMES THE AVERAGE MONTHLY EXPECTED PAYMENTS BY CUSTOMER TO ENH POWER PURSUANT TO THIS AGREEMENT. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
10.2 Force Majeure. ENH Power will make commercially reasonable efforts to provide Generation Service, but does not guarantee a continuous supply of electricity. Force Majeure Events may result in interruptions in service, and ENH Power will not be liable for any such interruptions. ENH Power does not (and will not pursuant to this Agreement) transmit or distribute electricity. For purposes of this Agreement, “Force Majeure Events” include, without limitation, acts of God, acts of any Governmental Authority or quasi Governmental Authority, accidents, strikes, labor troubles, required maintenance work, inability to access the local T&D Utility system, non-performance or interuption in service by the local T&D Utility, changes in laws, rules or regulations of any Governmental Authority or quasi Governmental Authority, sabotage; explosions; accidents affecting machinery or power lines; lightning; earthquakes; fires; storms; tornadoes, floods, failure of transmission or distribution, failure of generation, acts of a public enemy; and the direct or indirect effect of governmental orders, actions or interferences (so long as the Claiming Party has not applied for, assisted in, or failed to reasonably oppose such government action) or any other cause beyond a Party’s control. Nothing herein shall require a Party to make a capital expenditure to cure a Force Majeure Event or to settle any strike or labor dispute. Force Majeure Events shall not include any inability to perform for financial reasons or any change in Customer’s requirements for Generation Service. If either Party is rendered unable by Force Majeure to carry out, in whole or part, its obligations under this Agreement, such Party shall give notice and provide full details of the event to the other Party in writing as soon as practicable after the occurrence of the event. During such Force Majeure period, the obligations of the Parties (other than the obligation to make payments then due or becoming due with respect to performance prior to the event) will be suspended to the extent required. The Party claiming Force Majeure will make all reasonable attempts to remedy the effects of the Force Majeure and continue performance under this Agreement with all reasonable dispatch; provided, however, that no provision of this Agreement shall be interpreted to require ENH Power to deliver, or Customer to receive, electric energy at points other than the Delivery Point(s). Force Majeure shall not include (a) Customer’s decision to shut down, sell or relocate its facilities or (b) economic loss due to Customer’s loss of markets or suppliers.
10.3 Disclaimer. THE RETAIL GENERATION SERVICE SOLD UNDER THIS AGREEMENT WILL MEET THE QUALITY STANDARDS OF THE APPLICABLE LOCAL T&D UTILITY AND WILL BE SUPPLIED FROM A VARIETY OF SOURCES. ENH POWER MAKES NO REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND ENH POWER EXPRESSLY DISCLAIMS AND HEREBY NEGATES ALL OTHER REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE, WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.4 Indemnity. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party from and against any and all claims, demands, suits, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and costs of investigation) for damage to property owned by any third party and bodily injury to or death of persons (other than the employees of either Party, as to which each Party shall remain responsible for its employees) to the extent caused by the negligence or willful misconduct of the Indemnifying Party in connection with the execution of the terms and provisions contained in this Agreement or arising from or out of any event, circumstance, act or incident first occurring or existing during the period when control and title to electric energy is vested in such Party as provided in Section 11.2. The indemnification obligations of each Party under this Section 10.4 shall not be limited in any manner by the existence, non-existence or any amount of insurance or by the amount or types of damages.
SECTION 11: RENEWAL; TITLE; SELECTION OF ALTERNATE CEPS
11.1 Automatic Renewal. At least thirty (30) calendar days prior to the end of the Term of this Agreement, ENH Power will provide Customer a renewal Confirmation, which sets forth the Contract Price and Term that will apply to the Renewal Period. Customer will have ten (10) business days from receipt of a renewal Confirmation to decline automatic renewal in writing and terminate the Agreement without default effective at the end of the current Term. If Customer does not notify ENH Power in writing within ten (10) business days of its intent to decline automatic renewal of the Agreement, then the Renewal Period shall be in effect through the Term stated in the renewal Confirmation and the renewal Confirmation shall be incorporated into this Agreement by reference.
11.2 Title. Title to and risk of loss with respect to electricity provided by ENH Power shall pass to Customer at the Delivery Point. ENH Power shall not be responsible or liable for any delay caused by the non-performance of any third-party including, without limitation, the T&D Utility or for any interruption, failure to deliver or deterioration of any transmission or distribution services.
11.3 Selection of Alternate CEPS. Upon termination of this Agreement, Customer shall elect an alternate CEPS (which may include the T&D Utility Default Energy Service). If Customer fails to elect an alternate CEPS, Customer shall receive retail Generation Service from the T&D Utility’s Default Energy Service, pursuant to the applicable rules of the New Hampshire Public Utilities Commission.
SECTION 12: MISCELLANEOUS PROVISIONS
12.1 This Agreement shall be binding upon and inure to the benefit of each Party and upon their respective successors and permitted assigns.
12.2 The Parties expressly acknowledge that this Agreement is not to be relied upon by third 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 who is not a party to this Agreement.
12.3 Except as provided by the automatic renewal provisions of Section 11.1, this Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever except by a writing duly executed by each Party.
12.4 This Agreement shall be governed by, construed under and interpreted in accordance with the laws of the State of New Hampshire, without reference to its principles of conflicts of laws, as it exists on the Effective Date.
12.5 Each person who signs this Agreement on behalf of a Party represents and warrants that he or she has the authority to sign this Agreement on behalf of such Party.
12.6 This Agreement may be executed in counterparts with the same effect as if the signatures hereto and thereto were upon the same instrument. Each counterpart will be deemed an original, which taken together shall constitute a single agreement.
12.7 This Agreement or any uncertainty or ambiguity therein shall not be construed against any one Party but rather shall be construed as if both Parties jointly prepared this Agreement.
12.8 This Agreement and any Appendix or Exhibits attached hereto and any Confirmations executed in accordance with this Agreement constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes in their entirety any and all previous understandings, commitments, statements or assurances, oral or written, with respect to the subject matter hereof.
12.9 Customer may assign this Agreement, in whole or in part, or any of its rights or obligations hereunder only with the prior written consent of ENH Power. ENH Power may, upon at least 14 days advance written notice and without Customer’s further consent, to the fullest extent allowed by law: (a) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangement; (b) transfer or assign this Agreement to an affiliate of ENH Power; (c) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of ENH Power; and/or (d) transfer or assign the Agreement to a licensed CEPS, and by execution of this Agreement, Customer hereby gives its affirmative authorization and consent to any such transfer or assignment contemplated in clauses (a), (b), (c) and (d). In the case of clauses (b), (c) or (d) preceding, any such assignee shall agree in writing to be bound by the terms of this Agreement. Upon any such assignment, Customer agrees that ENH Power shall have no further obligations under this Agreement.
12.10 The invalidity or unenforceability of any of the covenants, provisions or clauses in this Agreement will not affect the remaining portions of the this Agreement, and this Agreement will be construed as if such invalid covenant, provision or clause had not been originally contained in this Agreement.
12.11 No waiver of any provision of this Agreement or default thereunder will be deemed 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 Parties in writing.
12.12 Customer affirmatively waives all specific contract provisions or requirements otherwise mandated for non-commercial and non-industrial customers by the New Hampshire Public Utilities Commission.
12.13 Each Party agrees to promptly execute and deliver, at the expense of the Party requesting such action, any and all other and further instruments and documents which may be reasonably requested in order to effectuate the transactions contemplated hereby.
12.14 In the event of an emergency, outage or service need, Customer must call their respective T&D Utility for the Account(s) experiencing the emergency, outage or service at the following numbers:
GSEC – Granite State Electric Company 1.800.465.1212
NHEC – New Hampshire Electric Co-op 1.800.343.6432 PSNH – Public Service of New
UES – Unitil Energy System Capital Electric 1.800.852.3339
Seacoast Electric 1.800.582.7276
12.15 Customer may contact ENH Power if Customer has specific comments, questions, disputes, or complaints at 800.549.6160, Monday to Friday 8:00 a.m. – 5:00 p.m. EST, or the New Hampshire Public Utilities Commission, Consumer Affairs Division at 603.271.2431 or 1.800.852.3793.
12.16 In the event of any litigation arising out of or connected in any manner with this Agreement, any action to collect any amounts that become due to ENH Power from Customer pursuant to the terms hereof or any action brought by a Party to enforce its rights and remedies hereunder, the non-prevailing Party (or Customer with respect to such collection actions) shall pay the costs of the prevailing Party (or ENH Power with respect to such collection actions), including its reasonable attorneys’ and other legal fees and expenses incurred in connection therewith through and including the costs of appeals and appellate costs relating thereto. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
12.17 This Agreement shall constitute an offer for retail Generation Service, and this Agreement is expressly conditioned on acceptance of this Agreement by ENH Power, which acceptance shall be evidenced by (and only by) ENH Power’s execution of this Agreement. ENH Power may refuse to provide retail Generation Service to Customer subject to the requirements of applicable law.
12.18 Each Party consents to the recording of all telephone conversations between its employees and the employees of the other Party. Any such recordings may be introduced to prove the intent of a transaction; provided, however, that nothing herein shall be construed as a waiver of any objection to the introduction of such evidence on the grounds of relevance. Absent manifest error, any conflict between such a recording and written documentation that is executed by both Parties shall be resolved in favor of such written documentation.
12.19 All indemnity rights will survive the termination of this Agreement. All obligations provided in this Agreement will remain in effect for the purpose of complying herewith.
12.20 Although all rates shown on ENH Power’s website and promotional materials have been rounded to the nearest hundredth of a cent for clarity, ENH Power will bill Customer the rate in cents per kilowatt hour (“kWh”) set forth in the Confirmation attached hereto for Customer’s actual consumption of electricity.
12.21 ENH Power makes the following disclosure of risks and costs associated with real- time or indexed electricity products in which the prices paid by Customer vary with changes in wholesale electricity prices, other energy prices, or an energy price index.
Volatility Risk: Electricity prices may be subject to substantial volatility based on economic conditions, fuel prices, seasonal electricity demands, generator outages, weather and other factors.
Future Performance: Past results regarding particular electricity products are not necessarily an indication of future results.
12.22 When Customer first applies for service and during the term of this Agreement, ENH Power may contact a credit reporting agency to obtain utility credit history and credit score. Once enrolled, ENH Power reserves the right to report Customer’s payment history to a credit reporting agency.
12.23 Information disclosure labels are available on ENH Power’s website at http://providerpower.com/nh/commercial-terms-service .
SECTION 13. DEFINITIONS
As used in this Agreement, the following terms have the indicated meanings:
13.1 “Account” means each account identified on the Confirmation.
13.2 “Actual Usage” means as to an Account and the applicable Billing Period, the actual amount of electric energy (in kWh) used as determined by the T&D Utility based on the reading of the meter(s) comprising such Account.
13.3 “Bankrupt” means with respect to any entity, such entity (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under a bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.
13.4 “Billing Period” means, for each account, the period between successive invoices rendered by either ENH Power or the applicable T&D Utility during the applicable Term.
13.5 “Business Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the relevant Party’s principal place of business. The relevant Party, in each instance unless otherwise specified, shall be the Party to whom the notice, payment or delivery is being sent and by whom the notice or payment or delivery is to be received.
13.6 “CEPS” means Competitive Electric Power Supplier.
13.7 “Claiming Party” means the Party claiming an event of Force Majeure.
13.8 “Contract Price” means the price in U.S. dollars as specified in an applicable Confirmation.
13.9 “Costs” means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other similar third party transaction costs and expenses reasonably incurred by such Party entering into new arrangements that replace a terminated Transaction; and all reasonable attorneys’ fees and expenses incurred by the Non-Defaulting Party in connection with the termination of a transaction.
13.10 “Early Termination Damages” means, for a particular Account, an amount equal to the sum of the present value (using a discount rate equal to the prime rate charged by the non-defaulting Party’s primary bank) of the loss of market value, if any, resulting from the termination of this Agreement with respect to such Account, and all other Costs, charges, penalties and Taxes incurred by the non-defaulting Party, or collectible from the defaulting Party, in connection with such termination (reasonably estimated if necessary) including, but not limited to, all Costs and charges incurred in order to determine the Early Termination Damages and to enforce the non-defaulting Party’s rights and remedies in the collection of such damages. The non-defaulting Party shall determine the loss of market value of the affected Account by reference to the number of units of Generation Service that Customer would have consumed during the Termination Period, relevant market information and indices (such as daily and monthly indices, settlement prices of futures contracts and gas exchange prices and quotations from leading dealers in energy contracts or energy trading markets), and the terms and conditions under which it would be able to enter into a replacement contract with a third party for the Termination Period. However, nothing in the foregoing shall obligate the non-defaulting Party to enter into any such replacement contract with a third party. Amounts used for calculating Early Termination Damages shall be adjusted for differences in transportation costs where applicable.
13.11 “Effective Date” the latest of the dates that Customer and ENH Power execute this Agreement.
13.12 “Gains” means with respect to any Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs) resulting from the termination of a transaction, determined in a commercially reasonable manner.
13.13 “Generation Service” means the provision of electric power to a retail customer through a T&D Utility but does not encompass any activity related to the transmission or distribution of that power.
13.14 “Governmental Authority” means any federal, state, local, municipal or other government, any governmental, regulatory or administrative agency, commission or other authority lawfully exercising or entitled to exercise jurisdiction over the Parties or any transaction contemplated herein.
13.15 “Guarantor” means with respect to a Party, an entity providing a guaranty of payment in favor of the other Party in a form mutually agreed to by the Parties.
13.16 “Insolvent” means with respect to any Party, when such Party shall be unable to pay liabilities as they mature or such entity shall admit in writing its inability to pay its debts generally as they become due.
13.17 “ISO-New England” means the regional transmission organization known as “ISO New England” that currently coordinates the movement of wholesale electricity in all or parts of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.
13.18 “kWh” means kilowatt-hour.
13.19 “Losses” means with respect to any Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of a transaction in a commercially reasonable manner.
13.20 “Material Change” means as to any Account (i) a material change to the electric retail service market in which such Account is located, or a material change to the wholesale market design, market rules, or administration implemented pursuant to ISO-New England protocol revisions; (ii) a change in customer operations that adversely affects the load profile (for settlement purposes), usage pattern or rate class with respect to such Account; or (iii) any new charge or expense imposed on ENH Power under applicable law in its obligation as the CEPS with respect to such Account.
13.21 “Non-Recurring Charges” means any charges imposed by the T&D Utility on a CEPS’s non-recurring basis.
13.22 “Settlement Amount” means, with respect to a transaction and the Non-Defaulting Party, the Losses and Costs (or Gains), expressed in U.S. Dollars, that such Party incurs as a result of the liquidation, including, but not limited to, Losses and Costs (or Gains) based upon the then current replacement value of the transaction together with, at the Non- Defaulting Party’s option, but without duplication, all Losses and Costs that such Party incurs as a result of maintaining, terminating, obtaining or reestablishing any hedge or related trading positions pursuant to this Agreement.
13.23 “Switch Date” means, as to any Account, the time and date on which the applicable T&D Utility has completed the process necessary to permit ENH Power to commence or discontinue providing the services hereunder. The process may include, as necessary and without limitation, recognizing ENH Power as Customer’s electric supplier; processing and acting on direct access service requests; installation of meters and the final meter read date.
13.24 “T&D Utility” means, whether one or more, the local transmission and distribution utility company serving each Account responsible for the transmission and distribution of electricity to retail customers it its service territory.
13.25 “Taxes” means all taxes, assessments, levies, duties, charges, fees and withholdings of any kind and all penalties, fines, and additions to tax, and interest thereon that are directly related to the services provided under this Agreement and assessed or imposed by federal, state, municipal or local government or other authority. By way of example only, “Taxes” includes sales tax, miscellaneous gross receipts tax and franchise fees.
13.26 “Termination Period” means as to an Account the period commencing as of the date of termination of this Agreement as to such Account and the end of the Term or (if applicable) renewal period.