ELECTRICITY NH, LLC d\/b\/a ENH POWER
\nRETAIL GENERATION SERVICE SUPPLY AGREEMENT \u2014 TERMS OF SERVICE<\/p>\n
1.1 Appointment, Scope and Term.<\/strong> Customer hereby appoints and designates ENH Power as its\u00a0Competitive Electric Power Supplier (\u201cCEPS\u201d) for the Customer Accounts listed on the Confirmation\u00a0attached hereto for the Term. ENH Power will perform all the functions of a CEPS, and subject to\u00a0the terms of the Confirmation, ENH Power will sell and provide to Customer and Customer shall\u00a0purchase and receive for each Account retail Generation Service for the full usage requirements of\u00a0such Account from the Switch Date and continuing thereafter until the date of the reading of the\u00a0meter(s) for such Account(s) first occurring on or after the final day of the Term for such Account\u00a0as specified in the Confirmation (the \u201cTerm\u201d). The purchase and sale of energy hereunder shall\u00a0commence at 00:00:01 EST on the first day that ENH Power provides physical delivery to your\u00a0facilities and shall end at 24:00:00 EST on the last day of the term. This Agreement is for retail\u00a0Generation Service and not for transmission or distribution service. Any conflict between the terms\u00a0and conditions of this Agreement and the terms and conditions in an applicable Confirmation shall\u00a0be resolved in favor of the Confirmation.<\/p>\n 1.2 Meter Usage Information.<\/strong> Customer expressly authorizes ENH Power to act as Customer\u2019s agent to\u00a0obtain advanced metering information (AMI) and historical usage information for any Customer\u00a0Account listed in the Confirmation.<\/p>\n 1.3 Net Metering.<\/strong> This Agreement is not applicable to Customer Accounts that are subject to Net\u00a0Metering, unless and until Customer enters into an additional contract to be signed with ENH Power\u00a0to cover specific payment arrangements for excess payment of power purchased over historical\u00a0account usages at time of enrollment, as well as an ACH agreement for automatic drafting of such\u00a0excess payment amounts.<\/p>\n 2.1 Fixed Generation Service Energy Price.<\/strong> Customer shall pay ENH Power the per kWh Contract\u00a0Price, as specified in the Confirmation, for the quantity of electric energy consumed in a Billing\u00a0Cycle.<\/p>\n 2.2 Taxes and Non-Recurring Charges<\/strong>. \u201cTaxes\u201d shall mean all ad valorem, property, occupation,\u00a0utility, gross receipts, sales, use, excise and other taxes, governmental charges, emission\u00a0allowance costs, licenses, permits and assessments, other than taxes based on net income or net\u00a0worth related to the transaction(s) undertaken pursuant to this Agreement. ENH Power shall pay all\u00a0Taxes with respect to its sale and delivery of Generation Service to Customer up to the Delivery\u00a0Point specified in the applicable Confirmation. Customer shall pay all Taxes with respect to the\u00a0purchase and receipt of Generation Service from ENH Power at and from the Delivery Point specified\u00a0in the applicable Confirmation and after title associated with such Generation Service transfers to\u00a0Customer. Whenever applicable, Customer will indemnify ENH Power for all Taxes with respect to the\u00a0purchase and receipt of Generation Service whether imposed on Customer or ENH Power. ENH Power may\u00a0collect such Taxes from Customer by\u00a0increasing ENH Power\u2019s charges for the amount of such Taxes. Customer and ENH Power will administer\u00a0and implement this Agreement with the intent to minimize Taxes. Customer will provide all requested\u00a0exemption certificates and information and until provided, ENH Power will not recognize any\u00a0exemption. ENH Power will not refund or credit previously paid Taxes, but will assign to Customer\u00a0applicable refund claims.<\/p>\n 3.1 Billing and Payment.<\/strong> All charges for the Generation Service provided by ENH Power hereunder\u00a0shall appear on the invoice issued by Customer\u2019s T&D Utility (a \u201cConsolidated T&D Utility\u00a0Invoice\u201d). Customer shall remit payment for such invoice to the T&D Utility within the T&D\u00a0Utility\u2019s net payment period stated therein, and all invoiced balances not paid in full by the due\u00a0date are subject to the T&D Utility\u2019s late payment policies and procedures, including assessment by\u00a0the T&D Utility of late payment fees and interest. Customer agrees to accept the measurements of\u00a0electricity consumed by the Customer as determined by the T&D Utility for purposes of accounting\u00a0for the electric power supplied under this Supply contract. ENH Power reserves the right to change\u00a0billing methods, including direct billing to Customer.<\/p>\n 4.1 Early Termination.<\/strong> In the event that either Party terminates this Agreement prior to the end\u00a0of the applicable Term, such early termination shall be considered an Event of Default as defined\u00a0in Section 7.1 below, unless otherwise excused or provided for by this Agreement. Upon any such\u00a0early termination by either Party, the defaulting Party shall be liable to the non-defaulting Party\u00a0for Early Termination Damages, as defined herein.<\/p>\n 4.2 Cancellation for Material Change.<\/strong> If a Material Change, as defined herein, occurs (unless ENH\u00a0Power, in its sole discretion, agrees in writing otherwise with Customer or Customer unilaterally\u00a0fully remedies the condition giving rise to the Material Change within the below referenced 10 day\u00a0period), in addition to any other remedies set forth herein, ENH Power reserves the right to pass\u00a0through any additional costs related to the Material Change to the Customer. If the Customer does\u00a0not accept the change in costs as the result of the Material Change, then ENH Power may terminate\u00a0this Agreement as to the affected Account(s) upon 10 days prior written notice to Customer without\u00a0penalty or Early Termination Damages.<\/p>\n 5.1 General Notice.<\/strong> Except as otherwise required by applicable law, all notices to be provided\u00a0under this Agreement to a Party shall be deemed to have been duly delivered if hand delivered,\u00a0delivered by e-mail with return receipt confirmation, or sent by United States, certified or\u00a0registered mail, return receipt requested, postage prepaid, facsimile, or by overnight delivery\u00a0service. 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\u00a0such Party provides to the other Party in writing:<\/p>\n If to ENH Power:<\/p>\n ENH Power Customer agrees that in order to facilitate enrollment, a copy of an invoice issued within the last\u00a0three (3) months by Customer\u2019s current Generation Service provider (or issued by Customer\u2019s T&D\u00a0Utility in the event Customer is a Default Energy Service customer or receives Consolidated T&D\u00a0Utility Invoices for Generation Service), for each Account shall be attached to this Agreement upon\u00a0its execution by Customer.<\/p>\n 7.1 Events of Default.<\/strong> An event of default (\u201cEvent of Default\u201d) means: (a) the failure of the\u00a0Customer to make, when due, any payment required under this Agreement and such failure continues\u00a0for more than 10 days following such due date; or (b) any representation or warranty made by the\u00a0applicable Party proves to be false or misleading in any material respect; or (c) the failure of\u00a0the applicable Party to perform its obligations under this Agreement and such failure is not\u00a0excused by Force Majeure; (d) the failure of the Customer to accept a change in cost as the result\u00a0of the Material Change; or (e) the applicable Party (i) makes an assignment or any general\u00a0arrangement for the benefit of creditors; or (ii) files a petition or otherwise commences,\u00a0authorizes or acquiesces to a bankruptcy proceeding or similar proceeding for the protection of\u00a0creditors, or have such petition filed against it; or (iii) otherwise becomes insolvent; or (iv) is\u00a0unable to pay its debts as they fall due.<\/p>\n 7.2 Notice of Default.<\/strong> The Non-Defaulting Party shall provide written notice of an Event\u00a0of Default to the Defaulting Party. Such notice of an Event of Default shall become effective\u00a0thirty (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 Section 7.1(a), (b),\u00a0(c), or (d) above occurs under this Agreement with respect to a Defaulting Party, the\u00a0Non-Defaulting Party shall have the right to: (i) designate a day, no earlier than the day such\u00a0notice 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 written notification to the Defaulting\u00a0Party. 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,\u00a0a Settlement 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 thereafter\u00a0as is reasonably practicable). The Non-Defaulting Party shall aggregate all Settlement Amounts\u00a0resulting from the termination of this Agreement into a single net amount (the “Termination\u00a0Payment”) payable by one Party to the other. In lieu of calculating and aggregating all Settlement\u00a0Amounts, ENH Power in its sole discretion shall have the option of electing a liquidated\u00a0Termination Payment of $500.00. The Termination Payment shall be due to or due from the\u00a0Non-Defaulting Party as appropriate. The notice shall include a written statement explaining in\u00a0<\/span>reasonable detail the calculation of such amount. The Termination Payment shall be made by the\u00a0Party that owes it within two (2) Business Days after receipt of such notice. If the Defaulting\u00a0Party disputes the Non-Defaulting Party’s calculation of the Termination Payment, in whole or in\u00a0part, the Defaulting Party shall, within two (2) Business Days of receipt of Non-Defaulting Party’s\u00a0calculation of the Termination Payment, provide to the Non-Defaulting Party a detailed written\u00a0explanation of the basis for such dispute.<\/p>\n 7.4 Setoff.<\/strong> Without limiting its rights under this Agreement, after an Event of Default, the\u00a0Non-Defaulting Party may set off any or all amounts the Defaulting Party owes to it against any or\u00a0all amounts it owes the Defaulting Party (whether under this Agreement or otherwise and whether or\u00a0not then due), provided that any amount not then due that is included in such setoff shall be\u00a0discounted to present value to take in account the period between the date of setoff and the date\u00a0on which such amount would have otherwise been due. This Section 7.4 shall be without prejudice and\u00a0in addition to any right of setoff, combination of accounts, lien or other right to which any Party\u00a0is at any time otherwise entitled (whether by operation of law, contract or otherwise).<\/p>\n 7.5 Transfer to T&D Utility Default Energy Service.<\/strong> Without limiting any rights under this\u00a0Agreement, including Customer\u2019s responsibility for all balances owed to ENH Power, ENH Power has\u00a0the right after an Event of Default and termination of this Agreement to automatically transfer\u00a0Customer to the T&D Utility Default Energy Service.<\/p>\n Each Party shall keep confidential and not disclose (except as required by law) any Confidential\u00a0Information, as defined below, to a third party (i.e., a party other than the Party\u2019s affiliates,\u00a0employees, lenders, counsel, accountants, advisors or prospective assignees who have a need to know\u00a0such information and have agreed to keep such information confidential) which is disclosed to such\u00a0Party (the \u201cReceiving Party\u201d) by the other Party (the \u201cDisclosing Party\u201d). \u201cConfidential\u00a0Information\u201d means the terms of this Agreement and any other information in written or other\u00a0tangible form which is so marked when it is disclosed to the Receiving Party, except that\u00a0Confidential Information shall not include information which (a) is available to the public; (b)\u00a0becomes available to the public other than as a result of a breach by the Receiving Party of its\u00a0obligations 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\u00a0disclosure by the Disclosing Party. The Parties shall be entitled to all remedies available at law\u00a0or in equity to enforce, or seek relief in connection with, this confidentiality obligation;\u00a0provided, all monetary damages shall be limited to direct actual damages and a breach of this\u00a0section shall not give rise to a right to suspend or terminate this Agreement. The provisions of\u00a0this Section 8 shall apply regardless of fault and shall survive termination, cancellation,\u00a0suspension, completion or expiration of this Agreement.<\/p>\n 9.1 Mutual Representations and Warranties.<\/strong> As a material inducement to entering into this\u00a0Agreement, each Party, with respect to itself, represents and warrants to the other Party that: (a)\u00a0it is duly organized, validly existing and in good standing under the laws of the jurisdiction of\u00a0its formation and is qualified to conduct its business in those jurisdictions necessary to perform\u00a0this Agreement; (b) the execution, delivery and performance of this Agreement are within its\u00a0powers, have been duly authorized by all necessary action, and do not violate any of the terms or\u00a0conditions in its governing documents or any contract to which it is a party or any law applicable\u00a0to it; (c) as of the date sales of retail Generation Service by ENH Power to the Customer pursuant\u00a0to this Agreement commences, it shall have all regulatory authorizations necessary for it to\u00a0legally perform its operations; (d) this Agreement constitutes a legal, valid and binding\u00a0obligation of the Party and is enforceable against it in accordance with its terms, subject to\u00a0bankruptcy, insolvency, reorganization, and other laws affecting creditor\u2019s rights generally, and\u00a0with regard to equitable remedies, subject to the discretion of the court before which proceedings\u00a0to obtain same may be pending; (e) there are no bankruptcy, insolvency, reorganization,\u00a0receivership or other similar proceedings pending or being contemplated by it, or to its knowledge\u00a0threatened against it; (f) there are no suits, proceedings, judgments, rulings or orders by or\u00a0before any court or any Governmental Authority or quasi Governmental Authority that could\u00a0materially adversely affect its ability to perform this Agreement; and (g) each Party has read this\u00a0Agreement and fully understands its rights and obligations under this Agreement, and has had an\u00a0opportunity to consult with an attorney of its own choosing to explain the terms of this Agreement\u00a0and the consequences of signing it.<\/p>\n 9.2 Other Representations and Warranties.<\/strong> Customer additionally represents and warrants to ENH\u00a0Power that: (a) it is not a residential customer; and (b) as of the Effective Date and throughout\u00a0the Term, there shall be no other contract for the purchase of retail Generation Service by\u00a0Customer for the Account(s), or, if such a contract presently exists, it will terminate prior to\u00a0the delivery of retail Generation Service to the Customer under this Agreement.<\/p>\n 9.3 Forward Contract.<\/strong> The Parties acknowledge and agree that (a) this Agreement constitutes a\u00a0forward contract within the meaning of the United States Bankruptcy Code (\u201cCode\u201d); (b) ENH Power is\u00a0a forward contract merchant; and (c) each Party is entitled to the applicable rights under, and the\u00a0applicable protections afforded by, the Code.<\/p>\n 10.1 Limitations of Liability.<\/strong> LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE\u00a0SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES. ENH POWER WILL NOT BE LIABLE TO\u00a0CUSTOMER FOR\u00a0CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR BUSINESS INTERRUPTION DAMAGES. THESE\u00a0LIMITATIONS APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. THE LIABILITY OF ENH\u00a0POWER TO CUSTOMER FOR ANY OBLIGATIONS UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO A\u00a0MAXIMUM OF THREE TIMES THE AVERAGE MONTHLY EXPECTED PAYMENTS BY CUSTOMER TO ENH POWER PURSUANT TO\u00a0THIS AGREEMENT. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.<\/p>\n 10.2 Force Majeure.<\/strong> ENH Power will make commercially reasonable efforts to provide Generation\u00a0Service, but does not guarantee a continuous supply of electricity. Force Majeure Events may result\u00a0in interruptions in service, and ENH Power will not be liable for any such interruptions. ENH Power\u00a0does not (and will not pursuant to this Agreement) transmit or distribute electricity. For purposes\u00a0of this Agreement, \u201cForce Majeure Events\u201d include, without limitation, acts of God, acts of any\u00a0Governmental Authority or quasi Governmental Authority, accidents, strikes, labor troubles,\u00a0required maintenance work, inability to access the local T&D Utility system, non-performance or\u00a0interuption in service by the local T&D Utility, changes in laws, rules or regulations of any\u00a0Governmental Authority or quasi Governmental Authority, sabotage; explosions; accidents affecting\u00a0machinery or power lines; lightning; earthquakes; fires; storms; tornadoes, floods, failure of\u00a0transmission or distribution, failure of generation, acts of a public enemy; and the direct or\u00a0indirect effect of governmental orders, actions or interferences (so long as the Claiming Party has\u00a0not applied for, assisted in, or failed to reasonably oppose such government action) or any other\u00a0cause beyond a Party\u2019s control. Nothing herein shall require a Party to make a capital expenditure\u00a0to cure a Force Majeure Event or to settle any strike or labor dispute. Force Majeure Events shall\u00a0not include any inability to perform for financial reasons or any change in Customer\u2019s requirements\u00a0for Generation Service. If either Party is rendered unable by Force Majeure to carry out, in whole\u00a0or part, its obligations under this Agreement, such Party shall give notice and provide full\u00a0details of the event to the other Party in writing as soon as practicable after the occurrence of\u00a0the event. During such Force Majeure period, the obligations of the Parties (other than the\u00a0obligation to make payments then due or becoming due with respect to performance prior to the\u00a0event) will be suspended to the extent required. The Party claiming Force Majeure will make all\u00a0reasonable attempts to remedy the effects of the Force Majeure and continue performance under this\u00a0Agreement with all reasonable dispatch; provided, however, that no provision of this Agreement\u00a0shall be interpreted to require ENH Power to deliver, or Customer to receive, electric energy at\u00a0points other than the Delivery Point(s). Force Majeure shall not include\u00a0(a) Customer’s decision to shut down, sell or relocate its facilities or (b) economic loss due to\u00a0Customer’s loss of markets or suppliers.<\/p>\n 10.3 Disclaimer.<\/strong> THE RETAIL GENERATION SERVICE SOLD UNDER THIS AGREEMENT WILL MEET THE QUALITY\u00a0STANDARDS OF THE APPLICABLE LOCAL T&D UTILITY AND WILL BE SUPPLIED FROM A VARIETY OF SOURCES. ENH\u00a0POWER MAKES NO REPRESENTATIONS, WARRANTIES OR OTHER ASSURANCE OTHER THAN THOSE EXPRESSLY SET FORTH\u00a0IN THIS AGREEMENT, AND ENH POWER EXPRESSLY DISCLAIMS AND HEREBY NEGATES ALL OTHER REPRESENTATIONS,\u00a0WARRANTIES OR OTHER ASSURANCE, WRITTEN OR ORAL, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT\u00a0LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.<\/p>\n 10.4 Indemnity.<\/strong> Each Party (the \u201cIndemnifying Party\u201d) shall indemnify, defend and hold harmless the\u00a0other Party from and against any and all claims, demands, suits, losses, damages, liabilities,\u00a0costs and expenses (including reasonable attorneys\u2019 fees and costs of investigation) for damage to\u00a0property owned by any third party and bodily injury to or death of persons (other than the\u00a0employees of either Party, as to which each Party shall remain responsible for its employees) to\u00a0the extent caused by the negligence or willful misconduct of the Indemnifying Party in connection\u00a0with the execution of the terms and provisions contained in this Agreement or arising from or out\u00a0of any event, circumstance, act or incident first occurring or existing during the period when\u00a0control and title to electric energy is vested in such Party as provided in Section 11.2. The\u00a0indemnification obligations of each Party under this Section 10.4 shall not be limited in any\u00a0manner by the existence, non-existence or any amount of insurance or by the amount or types of\u00a0damages.<\/p>\n 11.1 Automatic Renewal.<\/strong> At least thirty (30) calendar days prior to the end of the Term of this\u00a0Agreement, ENH Power will provide Customer a renewal Confirmation, which sets forth the Contract\u00a0Price and Term that will apply to the Renewal Period. Customer will have ten\u00a0(10) business days from receipt of a renewal Confirmation to decline automatic renewal in writing\u00a0and terminate the Agreement without default effective at the end of the current Term. If Customer\u00a0does not notify ENH Power in writing within ten (10) business days of its intent to decline\u00a0automatic renewal of the Agreement, then the Renewal Period shall be in effect through the Term\u00a0stated in the renewal Confirmation and the renewal Confirmation shall be incorporated into this\u00a0Agreement by reference.<\/p>\n 11.2 Title.<\/strong> Title to and risk of loss with respect to electricity provided by ENH Power shall pass\u00a0to Customer at the Delivery Point. ENH Power shall not be responsible or liable for any delay\u00a0caused by the non-performance of any third-party including, without limitation, the T&D Utility or\u00a0for any interruption, failure to deliver or deterioration of any transmission or distribution\u00a0services.<\/p>\n 11.3 Selection of Alternate CEPS.<\/strong> Upon termination of this Agreement, Customer shall elect an\u00a0alternate CEPS (which may include the T&D Utility Default Energy Service). If Customer fails to\u00a0elect an alternate CEPS, Customer shall receive retail Generation Service from the T&D Utility\u2019s\u00a0Default Energy Service, pursuant to the applicable rules of the New Hampshire Public Utilities\u00a0Commission.<\/p>\n 12.1<\/strong> This Agreement shall be binding upon and inure to the benefit of each Party and upon their\u00a0respective successors and permitted assigns.<\/p>\n 12.2<\/strong> The Parties expressly acknowledge that this Agreement is not to be relied upon by third\u00a0parties and that it carries with it no precedential value and should not be construed to create any\u00a0duty, obligation or standard of care with reference to any liability to any person or entity who is\u00a0not a party to this Agreement.<\/p>\n 12.3<\/strong> Except as provided by the automatic renewal provisions of Section 11.1, this Agreement may\u00a0not be altered, amended, modified or otherwise changed in any respect\u00a0whatsoever except by a writing duly executed by each Party.<\/p>\n 12.4<\/strong> This Agreement shall be governed by, construed under and interpreted in accordance with the\u00a0laws of the State of New Hampshire, without reference to its principles of conflicts of laws, as it\u00a0exists on the Effective Date.<\/p>\n 12.5<\/strong> Each person who signs this Agreement on behalf of a Party represents and warrants that he\u00a0or she has the authority to sign this Agreement on behalf of such Party.<\/p>\n 12.6<\/strong> This Agreement may be executed in counterparts with the same effect as if the signatures\u00a0hereto and thereto were upon the same instrument. Each counterpart will be deemed an original,\u00a0which taken together shall constitute a single agreement.<\/p>\n 12.7<\/strong> This Agreement or any uncertainty or ambiguity therein shall not be construed against any one\u00a0Party but rather shall be construed as if both Parties jointly prepared this Agreement.<\/p>\n 12.8<\/strong> This Agreement and any Appendix or Exhibits attached hereto and any Confirmations executed in\u00a0accordance with this Agreement constitute the entire agreement between the Parties with respect to\u00a0the subject matter hereof and supersedes in their entirety any and all previous understandings,\u00a0commitments, statements or assurances, oral or written, with respect to the subject matter hereof.<\/p>\n 12.9<\/strong> Customer may assign this Agreement, in whole or in part, or any of its rights or obligations\u00a0hereunder only with the prior written consent of ENH Power. ENH Power may, upon at least 14 days\u00a0advance written notice and without Customer\u2019s further consent, to the fullest extent allowed by\u00a0law: (a) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or\u00a0proceeds hereof in connection with any financing or other financial arrangement; (b) transfer or\u00a0assign this Agreement to an affiliate of ENH Power; (c) transfer or assign this Agreement to any\u00a0person or entity succeeding to all or substantially all of the assets of ENH Power; and\/or (d)\u00a0transfer or assign the Agreement to a licensed CEPS, and by execution of this Agreement, Customer\u00a0hereby gives its affirmative authorization and consent to any such transfer or assignment\u00a0contemplated in clauses (a), (b), (c) and (d). In the case of clauses (b), (c) or (d) preceding,\u00a0any such assignee shall agree in writing to be bound by the terms of this Agreement. Upon any such\u00a0assignment, Customer agrees that ENH Power shall have no further obligations under this Agreement.<\/p>\n 12.10<\/strong> The invalidity or unenforceability of any of the covenants, provisions or clauses in this\u00a0Agreement will not affect the remaining portions of the this Agreement, and this Agreement will be\u00a0construed as if such invalid covenant, provision or clause had not been originally contained in\u00a0this Agreement.<\/p>\n 12.11<\/strong> No waiver of any provision of this Agreement or default thereunder will be deemed to be or\u00a0will constitute a waiver of any other provision or other default, nor will such a waiver constitute\u00a0a continuing waiver unless otherwise expressly stated and agreed to by the Parties in writing.<\/p>\n 12.12<\/strong> Customer affirmatively waives all specific contract provisions or requirements otherwise\u00a0mandated for non-commercial and non-industrial customers by the New Hampshire Public Utilities\u00a0Commission.<\/p>\n 12.13<\/strong> Each Party agrees to promptly execute and deliver, at the expense of the Party requesting\u00a0such action, any and all other and further instruments and documents which may be reasonably\u00a0requested in order to effectuate the transactions contemplated hereby.<\/p>\n 12.14<\/strong> In the event of an emergency, outage or service need, Customer must call their respective T&D\u00a0Utility for the Account(s) experiencing the emergency, outage or service at the following numbers: 12.15<\/strong> Customer may contact ENH Power if Customer has specific comments, questions, disputes, or\u00a0complaints at 800.549.6160, Monday to Friday 8:00 a.m. \u2013 5:00 p.m. EST, or the New Hampshire Public\u00a0Utilities Commission, Consumer Affairs Division at 603.271.2431 or 1.800.852.3793.<\/p>\n 12.16<\/strong> In the event of any litigation arising out of or connected in any manner with this Agreement,\u00a0any action to collect any amounts that become due to ENH Power from Customer pursuant to the terms\u00a0hereof or any action brought by a Party to enforce its rights and remedies hereunder, the\u00a0non-prevailing Party (or Customer with respect to such collection actions) shall pay the costs of\u00a0the prevailing Party (or ENH Power with respect to such collection actions), including its\u00a0reasonable attorneys\u2019 and other legal fees and expenses incurred in connection therewith through\u00a0and including the costs of appeals and appellate costs relating thereto. EACH PARTY HEREBY\u00a0IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT\u00a0OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS\u00a0AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.<\/p>\n 12.17<\/strong> This Agreement shall constitute an offer for retail Generation Service, and this Agreement is\u00a0expressly conditioned on acceptance of this Agreement by ENH Power, which acceptance shall be\u00a0evidenced by (and only by) ENH Power\u2019s execution of this Agreement. ENH Power may refuse to provide\u00a0retail Generation Service to Customer subject to the requirements of applicable law.<\/p>\n 12.18<\/strong> Each Party consents to the recording of all telephone conversations between its employees and\u00a0the employees of the other Party. Any such recordings may be introduced to prove the intent of a\u00a0transaction; provided, however, that nothing herein shall be construed as a waiver of any objection\u00a0to the introduction of such evidence on the grounds of relevance. Absent manifest error, any\u00a0conflict between such a recording and written documentation that is executed by both Parties shall\u00a0be resolved in favor of such written documentation.<\/p>\n 12.19<\/strong> All indemnity rights will survive the termination of this Agreement. All obligations provided\u00a0in this Agreement will remain in effect for the purpose of complying herewith.<\/p>\n 12.20<\/strong> Although all rates shown on ENH Power\u2019s website and promotional materials have been rounded\u00a0to the nearest hundredth of a cent for clarity, ENH Power will bill Customer the rate in cents per\u00a0kilowatt hour (“kWh”) set forth in the Confirmation attached hereto for Customer\u2019s actual\u00a0consumption of electricity.<\/p>\n 12.21<\/strong> ENH Power makes the following disclosure of risks and costs associated with real- time or\u00a0indexed electricity products in which the prices paid by Customer vary with changes in wholesale\u00a0electricity prices, other energy prices, or an energy price index.<\/p>\n Volatility Risk: Electricity prices may be subject to substantial volatility based on economic\u00a0conditions, fuel prices, seasonal electricity demands, generator outages, weather and other\u00a0factors.<\/p>\n Future Performance: Past results regarding particular electricity products are not necessarily an\u00a0indication of future results.<\/p>\n 12.22<\/strong> When Customer first applies for service and during the term of this Agreement, ENH Power may\u00a0contact a credit reporting agency to obtain utility credit history and credit score. Once enrolled,\u00a0ENH Power reserves the right to report Customer\u2019s payment history to a credit reporting agency.<\/p>\n 12.23<\/strong> Information disclosure labels are available on ENH Power\u2019s website at\u00a0https:\/\/providerpower.com\/nh\/commercial-terms-service .<\/p>\n As used in this Agreement, the following terms have the indicated meanings:<\/p>\n 13.1<\/strong> \u201cAccount\u201d means each account identified on the Confirmation.<\/p>\n 13.2<\/strong> \u201cActual Usage\u201d means as to an Account and the applicable Billing Period, the actual amount of\u00a0electric energy (in kWh) used as determined by the T&D Utility based on the reading of the meter(s)\u00a0comprising such Account.<\/p>\n 13.3<\/strong> \u201cBankrupt” means with respect to any entity, such entity (i) files a petition or otherwise\u00a0commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under a\u00a0bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced\u00a0against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii)\u00a0otherwise becomes bankrupt or insolvent (however evidenced), (iv) has a liquidator, administrator,\u00a0receiver, trustee, conservator or similar official appointed with respect to it or any substantial\u00a0portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.<\/p>\n 13.4<\/strong> \u201cBilling Period” means, for each account, the period between successive invoices rendered by\u00a0either ENH Power or the applicable T&D Utility during the applicable Term.<\/p>\n 13.5<\/strong> \u201cBusiness Day” means any day except a Saturday, Sunday, or a Federal Reserve Bank holiday. A\u00a0Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the relevant Party’s\u00a0principal place of business. The relevant Party, in each instance unless otherwise specified, shall\u00a0be the Party to whom the notice, payment or delivery is being sent and by whom the notice or\u00a0payment or delivery is to be received.<\/p>\n 13.6<\/strong> \u201cCEPS\u201d means Competitive Electric Power Supplier.<\/p>\n 13.7<\/strong> \u201cClaiming Party\u201d means the Party claiming an event of Force Majeure.<\/p>\n 13.8<\/strong> \u201cContract Price\u201d means the price in U.S. dollars as specified in an applicable Confirmation.<\/p>\n 13.9<\/strong> \u201cCosts\u201d means, with respect to the Non-Defaulting Party, brokerage fees, commissions and other\u00a0similar third party transaction costs and expenses reasonably incurred by such Party entering into\u00a0new arrangements that replace a terminated Transaction; and all reasonable attorneys’ fees and\u00a0expenses incurred by the Non-Defaulting Party in connection with the termination of a transaction.<\/p>\n 13.10<\/strong> \u201cEarly Termination Damages\u201d means, for a particular Account, an amount equal to the sum of\u00a0the present value (using a discount rate equal to the prime rate charged by the non-defaulting\u00a0Party\u2019s primary bank) of the loss of market value, if any, resulting from the termination of this\u00a0Agreement with respect to such Account, and all other Costs, charges, penalties and Taxes incurred\u00a0by the non-defaulting Party, or collectible from the defaulting Party, in connection with such\u00a0termination (reasonably estimated if necessary) including, but not limited to, all Costs and\u00a0charges incurred in order to determine the Early Termination Damages and to enforce the\u00a0non-defaulting Party\u2019s rights and remedies in the collection of such damages. The non-defaulting\u00a0Party shall determine the loss of market value of the affected Account by reference to the number\u00a0of units of Generation Service that Customer would have consumed during the Termination Period,\u00a0relevant market information and indices (such as daily and monthly indices, settlement prices of\u00a0futures contracts and gas exchange prices and quotations from leading dealers in energy contracts\u00a0or energy trading markets), and the terms and conditions under which it would be able to enter into\u00a0a replacement contract with a third party for the Termination Period. However, nothing in the\u00a0foregoing shall obligate the non-defaulting Party to enter into any such replacement contract with\u00a0a third party. Amounts used for calculating Early Termination Damages shall be adjusted for\u00a0differences in transportation costs where applicable.<\/p>\n 13.11<\/strong> \u201cEffective Date\u201d the latest of the dates that Customer and ENH Power execute this Agreement.<\/p>\n 13.12<\/strong> \u201cGains\u201d means with respect to any Party, an amount equal to the present value of the economic\u00a0benefit to it, if any (exclusive of Costs) resulting from the termination of a transaction,\u00a0determined in a commercially reasonable manner.<\/p>\n 13.13<\/strong> \u201cGeneration Service\u201d means the provision of electric power to a retail customer through a T&D\u00a0Utility but does not encompass any activity related to the transmission or distribution of that\u00a0power.<\/p>\n 13.14<\/strong> \u201cGovernmental Authority” means any federal, state, local, municipal or other government, any\u00a0governmental, regulatory or administrative agency, commission or other authority lawfully\u00a0exercising or entitled to exercise jurisdiction over the Parties or any transaction contemplated\u00a0herein.<\/p>\n 13.15<\/strong> \u201cGuarantor” means with respect to a Party, an entity providing a guaranty of payment in favor\u00a0of the other Party in a form mutually agreed to by the Parties.<\/p>\n 13.16<\/strong> \u201cInsolvent\u201d means with respect to any Party, when such Party shall be unable to pay\u00a0liabilities as they mature or such entity shall admit in writing its inability to pay its debts\u00a0generally as they become due.<\/p>\n 13.17<\/strong> \u201cISO-New England\u201d means the regional transmission organization known as \u201cISO New England\u201d\u00a0that currently coordinates the movement of wholesale electricity in all or parts of Connecticut,\u00a0Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.<\/p>\n 13.18<\/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 the\u00a0economic loss to it, if any (exclusive of Costs), resulting from termination of a transaction in a\u00a0commercially reasonable manner.<\/p>\n 13.20<\/strong> \u201cMaterial Change\u201d means as to any Account (i) a material change to the electric retail\u00a0service market in which such Account is located, or a material change to the wholesale market\u00a0design, market rules, or administration implemented pursuant to ISO-New England protocol revisions;\u00a0(ii) a change in customer operations that adversely affects the load profile (for settlement\u00a0purposes), usage pattern or rate class with respect to such Account; or (iii) any new charge or\u00a0expense imposed on ENH Power under applicable law in its obligation as the CEPS with respect to\u00a0such Account.<\/p>\n 13.21<\/strong> \u201cNon-Recurring Charges\u201d means any charges imposed by the T&D Utility on a CEPS\u2019s\u00a0non-recurring basis.<\/p>\n 13.22<\/strong> \u201cSettlement Amount\u201d means, with respect to a transaction and the Non-Defaulting Party, the\u00a0Losses and Costs (or Gains), expressed in U.S. Dollars, that such Party incurs as a result of the\u00a0liquidation, including, but not limited to, Losses and Costs (or Gains) based upon the then current\u00a0replacement value of the transaction together with, at the Non- Defaulting Party’s option, but\u00a0without duplication, all Losses and Costs that such Party incurs as a result of maintaining,\u00a0terminating, obtaining or reestablishing any hedge or related trading positions pursuant to this\u00a0Agreement.<\/p>\n 13.23<\/strong> \u201cSwitch Date\u201d means, as to any Account, the time and date on which the applicable T&D Utility\u00a0has completed the process necessary to permit ENH Power to commence or discontinue providing the\u00a0services hereunder. The process may include, as necessary and\u00a0without limitation, recognizing ENH Power as Customer’s electric supplier; processing and acting on\u00a0direct access service requests; installation of meters and the final meter read date.<\/p>\n 13.24<\/strong> \u201cT&D Utility\u201d means, whether one or more, the local transmission and distribution utility\u00a0company serving each Account responsible for the transmission and distribution of electricity to\u00a0retail customers it its service territory.<\/p>\n 13.25<\/strong> \u201cTaxes\u201d means all taxes, assessments, levies, duties, charges, fees and withholdings of any\u00a0kind and all penalties, fines, and additions to tax, and interest thereon that are directly related\u00a0to the services provided under this Agreement and assessed or imposed by federal, state, municipal\u00a0or local government or other authority. By way of example only, \u201cTaxes\u201d includes sales tax,\u00a0miscellaneous gross receipts tax and franchise fees.<\/p>\n 13.26<\/strong> \u201cTermination Period\u201d means as to an Account the period commencing as of the date of\u00a0termination of this Agreement as to such Account and the end of the Term or (if\u00a0applicable) renewal period.<\/p>\n\n","protected":false},"excerpt":{"rendered":"","protected":false},"author":2,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-559","page","type-page","status-publish","hentry"],"jetpack_shortlink":"https:\/\/wp.me\/P7ctJa-91","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/pages\/559","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/comments?post=559"}],"version-history":[{"count":0,"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/pages\/559\/revisions"}],"wp:attachment":[{"href":"https:\/\/providerpower.com\/nh\/wp-json\/wp\/v2\/media?parent=559"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}SECTION 2: RETAIL GENERATION SERVICE CHARGES<\/h2>\n
SECTION 3: BILLING AND PAYMENT<\/h2>\n
SECTION 4: EARLY TERMINATION<\/h2>\n
SECTION 5: NOTICES<\/h2>\n
\n12140 Wickchester Lane Suite 100
\nHouston, TX 77079
\n800.549.6160 (telephone)
\n855.558.8480 (fax)
\nE-mail: businesspricing@enhpower.com Attention: Business Account Manager<\/p>\nSECTION 6: COPY OF CURRENT INVOICE<\/h2>\n
SECTION 7: DEFAULT AND REMEDIES<\/h2>\n
SECTION 8: CONFIDENTIALITY<\/h2>\n
SECTION 9: REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENT<\/h2>\n
SECTION 10: DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITIES; INDEMNITY<\/h2>\n
SECTION 11: RENEWAL; TITLE; SELECTION OF ALTERNATE CEPS<\/h2>\n
SECTION 12: MISCELLANEOUS PROVISIONS<\/h2>\n
\nGSEC \u2013 Granite State Electric Company 1.800.465.1212
\nNHEC \u2013 New Hampshire Electric Co-op 1.800.343.6432 PSNH \u2013 Public Service of New
\nHampshire 1.800.662.7764
\nUES \u2013 Unitil Energy System Capital Electric 1.800.852.3339
\nSeacoast Electric 1.800.582.7276<\/p>\nSECTION 13. DEFINITIONS<\/h2>\n