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Exhibit
ITEM 21 - 4e
MATERIAL CONTRACTS
Southern California Edison Company
Energy Service Provider Service Agreement
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SCE SERVICE AGREEMENT
Agreement Number: 1237
This Energy Service Provider Service Agreement (this "Agreement") is made
and entered into as of this 1st day of January 1998, by and between "PowerSource
Corp.," ("ESP"), a Corporation organized and existing under the laws of the
state of Nevada and Southern California Edison Company ("Edison"), a corporation
organized and existing under the laws of the State of California. From time to
time, ESP and Edison shall be individually referred to herein as a "Party" and
collectively as the "Parties."
Section 1: General Description of Agreement
1.1 This Agreement is a legally binding contract. The Parties named in this
Agreement are bound by the terms set forth herein and otherwise incorporated
herein by reference. This Agreement shall govern the business relationship
between the Parties hereto by which ESP shall offer electrical energy services,
including, but not limited to, account maintenance and billing services,
electrical meter installation, meter reading services and/or any other services
that may be approved by the California Public Utilities Commission ("CPUC") in
Direct Access transactions with customers in Ediso's service territory ("Direct
Access Services"). Each Party, by agreeing to undertake specific activities and
responsibilities for or on behalf of customers, acknowledges that each Party
shall relieve and discharge the other Party of the responsibility for said
activities and responsibilities with respect to those customers. Except where
explicitly defined herein (including Attachment A hereto) the definitions
controlling this Agreement are contained in Edison's applicable rules or in the
relevant direct access tariff (Edison Rule 22).
1.2 The form of this Agreement has been developed as part of the CPUC
regulatory process, was intended to conform to CPUC directions, was filed and
approved by the CPUC for use between Edison and ESPs and may not be waived,
altered, amended or modified, except as provided herein or in the relevant
direct access tariff, or as may otherwise be authorized by the CPUC.
Section 2: Representations
2.1 Each Party represents that it is and shall remain in compliance with
all applicable laws and tariffs, including applicable CPUC requirements.
2.2 Each person executing this Agreement for the respective Parties
expressly represents and warrants that he or she has authority to bind the
entity on whose behalf this Agreement is executed.
2.3 Each Party represents that (a) it has the full power and authority to
execute and deliver this Agreement and to perform its terms and conditions; (b)
the execution, delivery and performance of this Agreement have been duly
authorized by all necessary corporate or other action by such Party; and (c)
this Agreement constitutes such Party's legal, valid and binding obligation,
enforceable against such Party in accordance with its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence and good
faith in the performance of its duties pursuant to this Agreement; and (b) carry
out its duties in accordance with applicable recognized professional standards
in accordance with the requirements of this Agreement.
Section 3: Term of Service
3.1 The term of this Agreement shall commence on the date of execution by
both Parties hereto (the "Effective Date") and shall terminate on the earlier of
(a) the date ESP informs Edison that it is no longer operating as an ESP in
Edison's service territory; (b) the earlier termination pursuant to Section 4
hereof; or (c) the effective date of a new ESP Service Agreement between the
Parties hereto. Notwithstanding the Effective Date of this Agreement, the ESP
acknowledges that it may only offer Direct Access Services to customers
effective January 1, 1998, or such other date as may be directed by the CPUC for
commencement of such services by ESPs, and only after it has complied with all
provisions of this Agreement and Edison's applicable tariffs.
Section 4: Events of Default and Remedy for Default
4.1 An Event of Default under this Agreement shall include either Party's
material breach of any provision of this Agreement, including those incorporated
by reference herein, and failure to cure such breach within thirty (30) calendar
days of receipt of written notice thereof from the non-defaulting Party; or such
other period as may be provided by this Agreement or the relevant direct access
tariff.
4.2 In the event of such an Event of Default, the non-defaulting Party
shall be entitled (a) to exercise any and all remedies available under the
relevant direct access tariff ; (b) to the extent not inconsistent with the
relevant direct access tariff, to exercise any and all remedies provided for by
law or in equity; and (c) in the event of a material Event of Default, to
terminate this Agreement upon written notice to the other Party, which shall be
effective upon the receipt thereof.
4.3 Breach by any Party hereto of any provision of the relevant direct
access tariff shall be governed by applicable provisions contained therein and
each Party will retain all rights granted thereunder.
Section 5: Billing, Metering and Payment
5.1 Billing options and metering services which are available to ESP shall
be as described in the relevant direct access tariff. Billing and metering
options applicable to a particular customer shall be designated in the Direct
Access Service Request submitted by the ESP for such customer.
5.2 Edison will ▇▇▇▇ and the ESP agrees to pay Edison for all services and
products provided by Edison in accordance with the terms and conditions set
forth in the relevant direct access tariff. Any services provided by the ESP to
Edison shall be by separate agreement between the Parties and are not a subject
of this Agreement.
Section 6: Limitation of Liability
6.1 Each Party's liability to the other Party for any loss, cost, claim,
injury, liability, or expense, including reasonable attorneys fees, relating to
or arising from any act or omission in its performance of this Agreement, shall
be limited to the amount of direct damage actually incurred, except as provided
for in this Section. In no event shall either Party be liable to the other Party
for any indirect, special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability, except in the event
of an action covered by the Indemnification provisions of Section 7 of this
Agreement, in which event this Section 6 shall not be applicable.
Section 7: Indemnification
7.1 To the fullest extent permitted by law, and subject to the limitations
set forth in Section 6 of this Agreement, each Party (the "Indemnifying Party")
shall indemnify and hold harmless the other Party, and its current and future
direct and indirect parent companies, affiliates and their shareholders,
officers, directors, employees, agents, servants and assigns (collectively, the
"Indemnified Party") and at the Indemnified Party's option, the Indemnifying
Party shall defend the Indemnified Party from and against any and all claims
and/or liabilities for losses, expenses, damage to property, injury to or death
of any person, including, but not limited to, the Indemnified Party's employees
and its affiliates employees, subcontractors and subcontractors employees, or
any other liability incurred by the Indemnified Party, including reasonable
expenses, legal and otherwise, which shall include reasonable attorneys' fees,
caused wholly or in part by any negligent, grossly negligent or willful act or
omission by the Indemnifying Party, its officers, directors, employees, agents
or assigns arising out of this Agreement, except to the extent caused wholly or
in part by any negligent, grossly negligent or willful act or omission of the
Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the Indemnified
Party, then the Indemnifying Party shall be entitled to participate in, and
unless in the opinion of counsel for the Indemnified Party a conflict of
interest between the Parties may exist with respect to such claim, assume the
defense of such claim, with counsel reasonably acceptable to the Indemnified
Party. If the Indemnifying Party does not assume the defense of the Indemnified
Party, or if a conflict precludes the Indemnifying Party from assuming the
defense, then the Indemnifying Party shall reimburse the Indemnified Party on a
monthly basis for the Indemnified Party's defense through separate counsel of
the Indemnified Party's choice. Even if the Indemnifying Party assumes the
defense of the Indemnified Party with acceptable counsel, the Indemnified Party,
at its sole option, may participate in the defense, at its own expense, with
counsel of its own choice without relieving the Indemnifying Party of any of its
obligations hereunder. In no event shall either Party be liable to the other
Party for any indirect, special, consequential, or punitive damages of any kind
whatsoever, whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this Section 7
shall survive termination of this Agreement, and shall not be limited in any way
by any limitation on the amount or type of damages, compensation or benefits
payable by or for the Indemnifying Party under any statutory scheme, including,
without limitation, under any Worker's Compensation Acts, Disability Benefit
Acts or other Employee Benefit Acts.
Section 8: Assignment and Delegation
8.1 Neither Party to this Agreement shall assign any of its rights or
obligations under this Agreement, except with the prior written consent of the
other Party, which consent shall not be unreasonably withheld or delayed. No
assignment of this Agreement shall relieve the assigning Party of any of its
obligations under this Agreement until such obligations have been assumed by the
assignee. When duly assigned in accordance with the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the assignee and the
assignor shall be relieved of its rights and obligations. Any assignment in
violation of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either Party may
subcontract its duties under this Agreement to a subcontractor, provided that
the subcontracting Party shall remain fully responsible as a principal and not
as a guarantor for performance of any subcontracted duties, shall serve as the
point of contact between its subcontractor and the other Party, and shall
provide the other Party with thirty (30) calendar days' prior written notice of
any such subcontracting, which notice shall include such information about the
subcontractor as the other Party shall reasonably require, and provided further
that each Party may subcontract its obligation to provide Metering or Meter
Reading Services under this Agreement only to subcontractors who have complied
with all certification or registration requirements described in applicable law,
CPUC rules and the relevant direct access tariff. If either Party subcontracts
any of its duties hereunder, it shall cause its subcontractors to perform in a
manner which is in conformity with that Party's obligations under this
Agreement.
Section 9: Independent Contractors
Each Party shall perform its obligations under this Agreement (including
any obligations performed by a Party's designees as permitted under Section 8 of
this Agreement) as an independent contractor.
Section 10: Entire Agreement
10.1 This Agreement consists of, in its entirety, this Energy Service
Provider Service Agreement and all attachments hereto, all Direct Access Service
Requests submitted pursuant to this Agreement and the relevant direct access
tariff. This Agreement supersedes all other agreements or understandings,
written or oral, between the Parties related to the subject matter hereof. This
Agreement may be modified from time to time only by an instrument in writing,
signed by both Parties.
Section 11: Nondisclosure
11.1 Neither Party may disclose any Confidential Information obtained
pursuant to this Agreement to any third party, including affiliates of such
Party, without the express prior written consent of the other Party. As used
herein, the term "Confidential Information" shall include, but not be limited
to, all business, financial, and commercial information pertaining to the
Parties, customers of either or both Parties, suppliers for either Party,
personnel of either Party, any trade secrets, and other information of a similar
nature, whether written or in intangible form that is marked proprietary or
confidential with the appropriate owner's name. Confidential Information shall
not include information known to either Party prior to obtaining the same from
the other Party, information in the public domain, or information obtained by a
Party from a third party who did not, directly or indirectly, receive the same
from the other Party to this Agreement or from a party who was under an
obligation of confidentiality to the other Party to this Agreement or
information developed by either Party independent of any Confidential
Information. The receiving Party shall use the higher of the standard of care
that the receiving Party uses to preserve its own confidential information or a
reasonable standard of care to prevent unauthorized use or disclosure of such
Confidential Information. Each receiving Party shall, upon termination of this
Agreement or at any time upon the request of the disclosing Party, promptly
return or destroy all Confidential Information of the disclosing Party then in
its possession.
11.2 Notwithstanding the preceding, Confidential Information may be
disclosed to any governmental, judicial or regulatory authority requiring such
Confidential Information pursuant to any applicable law, regulation, ruling, or
order, provided that: (a) such Confidential Information is submitted under any
applicable provision, if any, for confidential treatment by such governmental,
judicial or regulatory authority; and (b) prior to such disclosure, the other
Party is given prompt notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention in any proceeding
and the seeking of any injunction to prohibit such disclosure.
Section 12: Enforceability
12.1 If any provision of this Agreement or the application thereof, is to
any extent held invalid or unenforceable, the remainder of this Agreement and
the application thereof, other than those provisions which have been held
invalid or unenforceable, shall not be affected and shall continue in full force
and effect and shall be enforceable to the fullest extent permitted by law or in
equity.
Section 13: Notices
13.1 Except as otherwise provided in this Agreement, any notices under this
Agreement shall be in writing and shall be effective upon delivery if delivered
by (a) hand; (b) U.S. Mail, first class postage pre-paid, or (c) facsimile, with
confirmation of receipt to the Parties as follows:
If the notice is to ESP:
Contact Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Business Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
If the notice is to Edison:
Contact Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Business Address: ▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
13.2 Each Party shall be entitled to specify as its proper address any
other address in the United States upon written notice to the other Party.
13.3 Each Party shall designate on Attachment A the person(s) to be
contacted with respect to specific operational matters relating to Direct Access
service. Each Party shall be entitled to specify any change to such person(s)
upon written notice to the other Party.
Section 14: Time of Essence
14.1 The Parties expressly agree that time is of the essence for all
portions of this Agreement.
Section 15: Dispute Resolution
15.1 The form of this Agreement has been filed with and approved by the
CPUC as part of Edison's applicable tariffs. Except as provided in Section 15.2
and 15.3, any dispute arising between the Parties relating to interpretation of
the provisions of this Agreement or to the performance of Edison's obligations
hereunder (including the performance of Billing Services, Metering Services and
MDMA Services by Edison) shall be reduced to writing and referred to the Parties
representatives identified on Attachment A for resolution. Should such a dispute
arise, the Parties shall be required to meet and confer in an effort to resolve
their dispute. Pending resolution, the Parties shall proceed diligently with the
performance of their respective obligations under this Agreement, except if this
Agreement has been terminated under Section 4.2. If the Parties fail to reach an
agreement within a reasonable period of time, the matter shall, upon demand of
either Party, be submitted to resolution before the CPUC in accordance with the
CPUC's rules, regulations and procedures applicable to resolution of such
disputes.
15.2 Any dispute arising between the Parties relating to interpretation of
the provisions of this Agreement or to the performance of the ESP's obligations
hereunder (including the performance of Billing Services, Metering Services and
MDMA Services by the ESP) shall be reduced to writing and referred to the
Parties representatives identified on Attachment A for resolution. Should such a
dispute arise, the Parties shall be required to meet and confer in an effort to
resolve their dispute. Pending resolution, the Parties shall proceed diligently
with the performance of their respective obligations under this Agreement,
except if this Agreement has been terminated under Section 4.2. If the Parties
fail to reach an agreement within a reasonable period of time, the Parties may
mutually agree to pursue mediation or arbitration to resolve such issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2 above: (a)
all disputes between the Parties relating to the payment by the ESP of any
Edison fees or charges shall be subject to the provisions of Edison's applicable
tariffs governing disputes over customer bills; (b) all disputes between the
Parties regarding Competition Transition Charges payable by direct access
customers or the ESP on behalf of such customers shall be subject to the
provisions of Edison's applicable tariffs; and (c) Edison may pursue available
remedies for unauthorized electrical use by the ESP in a court of competent
jurisdiction.
15.4 If the dispute involves a request for damages, Parties are notified
that the Commission has no authority to award damages. To resolve such issues,
the Parties may mutually agree to pursue mediation or arbitration to resolve
such issues, or if no agreement is reached, to pursue other legal remedies that
are available to the Parties.
Section 16: Applicable Law and Venue
16.1 This Agreement shall be interpreted, governed by and construed in
accordance with the laws of the State of California, and shall exclude any
choice of law rules that direct the application of the laws of another
jurisdiction, irrespective of the place of execution or of the order in which
the signatures of the Parties are affixed or of the place or places of
performance. Except for matters and disputes with respect to which the CPUC is
the sole proper venue for dispute resolution pursuant to applicable law or this
Agreement, the federal and state courts located in Los Angeles County,
California shall constitute the sole proper venue for resolution of any matter
or dispute hereunder, and the Parties submit to the exclusive jurisdiction of
such courts with respect to such matters and disputes.
Section 17: Force Majeure
17.1 Neither Party shall be liable for any delay or failure in the
performance of any part of this Agreement (other than obligations to pay money)
due to any event of force majeure or other cause beyond its reasonable control,
including but not limited to, unusually severe weather, flood, fire, lightning,
epidemic, quarantine restriction, war, sabotage, act of a public enemy,
earthquake, insurrection, riot, civil disturbance, strike, work stoppage caused
by jurisdictional and similar disputes, restraint by court order or public
authority, or action or non-action by or inability to obtain authorization or
approval from any governmental authority, or any combination of these causes,
which by the exercise of due diligence and foresight such Party could not
reasonably have been expected to avoid and which by the exercise of due
diligence is unable to overcome. It is agreed that upon the Party so affected
giving written notice and reasonably full particulars of such force majeure to
the other Party within a reasonable time after the cause relied on, then the
obligations of the Party, so far as they are affected by the event of force
majeure, shall be suspended during the continuation of such inability and
circumstance and shall, so far as possible, be remedied with all reasonable
dispatch. In the event of force majeure, as described herein, both Parties shall
take all reasonable steps to comply with this Agreement and Edison's applicable
tariffs despite occurrence of a force majeure event.
Section 18: Unauthorized Use of Energy (Energy Theft)
18.1 The ESP represents and warrants that for each of its Customers, and at
all times during which it provides Direct Access services as an Energy Service
Provider, the ESP shall completely, accurately, and in a timely manner account
for each of its Customer's loads with a duly authorized Scheduling Coordinator.
Load data not accounted for in this manner may provide grounds for termination
of this Agreement. For verification purposes only, Edison shall have complete
access to the identity of the Scheduling Coordinator and the load data provided
to it by the ESP. Such information is to remain confidential, and shall not be
disclosed to any unauthorized person.
18.2 Edison shall notify the ESP immediately and the ESP shall notify
Edison immediately of any suspected unauthorized energy use. The Parties agree
to preserve any evidence of unauthorized energy use. Once unauthorized energy
use is suspected, Edison, in its sole discretion, may take any or all of the
actions permitted under Edison's applicable tariffs.
Section 19: Not a Joint Venture
19.1 Unless specifically stated in this Agreement to be otherwise, the
duties, obligations, and liabilities of the Parties are intended to be several
and not joint or collective. Nothing contained in this Agreement shall ever be
construed to create an association, trust, partnership or joint venture or to
impose a trust or partnership duty, obligation, or liability on or with regard
to either Party. Each Party shall be liable individually and severally for its
own obligations under this Agreement.
Section 20: Conflicts Between this Agreement and the Relevant Direct Access
Tariff
20.1 Should a conflict exist or develop between the provisions of this
Agreement and the relevant direct access tariff, as approved by the CPUC, the
provisions of the relevant direct access tariff shall prevail.
Section 21: Amendments or Modifications
21.1 Except as provided in Section 21.2, no amendment or modification shall
be made to this Agreement, in whole or in part, except by an instrument in
writing executed by authorized representatives of the Parties, and no amendment
or modification shall be made by course of performance, course of dealing or
usage of trade.
21.2 This Agreement may be subject to such changes or modifications as the
CPUC may from time to time direct or necessitate in the exercise of its
jurisdiction, and the Parties may amend the Agreement to conform to changes
directed or necessitated by the CPUC. In the event the Parties are unable to
agree on the required changes or modifications to this Agreement, their dispute
shall be resolved in accordance with the provisions of Section 15 hereof or, in
the alternative, ESP may elect to terminate this Agreement upon written notice
to Edison, which shall be effective upon the receipt thereof. Edison retains the
right to unilaterally file with the CPUC, pursuant to the CPUC's rules and
regulations, an application for a change in Edison's rates, charges,
classification, service or rules, or any agreement relating thereto.
Section 22: Billing Options Offered to End-Use Customers by ESP
Check which billing options (as described in the relevant direct access
tariff) ESP intends to provide its Customers under this Agreement.
_____ Consolidated Edison Billing. If ESP is selecting this billing option,
indicate the primary method for notifying Edison of ESP charges (check one):
_____ EDI _____ Other electronic exchange _____ Consolidated ESP Billing. If ESP
is selecting this billing option, (a) ESP must submit a credit application on
the form supplied by Edison; and (b) indicate the primary method for notifying
ESP of Edison Charges (check one):
_____ Paper
_____ Diskette
_____ EDI
_____ Other electronic exchange
_____ Separate Edison and ESP Bills.
ESP may change these elections from time to time in compliance with the
relevant direct access tariff upon prior written notice to Edison. The Direct
Access Service Request ("DASR") for each Direct Access customer will specify
which billing option will apply to that customer. If ESP specifies in any DASR
any billing option that has not been checked above, the DASR will be rejected.
Section 23: Meter Options Offered to End-Use Customers by ESP
Please indicate which meter options (as described in Edison's applicable
tariffs) the ESP will offer for some or all Customers served under this
Agreement:
_____ ESP will provide Hourly Meters.
_____ ESP will offer Hourly Meter Installation Services.
_____ ESP will offer Hourly Meter Reading Services.
ESP may change these elections from time to time in compliance with the
relevant direct access tariff upon prior written notice to Edison. The Direct
Access Service Request for each Direct Access customer will specify which
metering option will apply to that Customer. If ESP specifies in any Direct
Access Service Request any metering option that has not been checked above, the
DASR will be rejected.
Section 24: Audits
24.1 Edison and the ESP shall each retain such specific records as may be
required to support the accuracy of meter data provided in their respective
consolidated ▇▇▇▇▇▇▇▇. When either Party reasonably believes that errors related
to metering or billing activity may have occurred, a Party may request the
production of such documents as may be required to verify the accuracy of such
metering and consolidated billing. Such documents shall be provided within ten
(10) business days of such request. In the event the requesting Party, upon
review of such documents, continues to believe that the other Party's duty to
accurately meter and provide consolidated billing for usage has been breached,
the requesting Party may direct that an audit be conducted. Edison and the ESP
shall designate their own employee representative or their contracted
representative to audit the other party's records.
24.2 Any such audit shall be undertaken by Edison, the ESP, or their
contracted representative at reasonable times without interference with the
audited Party's business operations, and in compliance with the audited Party's
security procedures. Edison and the ESP agree to cooperate fully with any such
audit.
24.3 Specific records to support the accuracy of meter data provided in the
consolidated ▇▇▇▇▇▇▇▇ may require examination of billing and metering support
documentation maintained by subcontractors. Edison and the ESP shall include a
similar clause in their agreements with their subcontractors reserving the right
to designate their own employee representative, or their contracted
representative to audit records related to consolidated billing to Direct Access
Customers.
24.4 The auditing Party will notify the audited Party in writing of any
exception taken as a result of an audit. The audited Party shall refund the
amount of any undisputed exception to the auditing Party within ten (10) days.
If the audited Party fails to make such payment, the audited Party agrees to pay
interest, accruing monthly, at a rate equal to the prime rate plus two percent
(2%) of Bank of America NT&SA, San Francisco, or any successor institution, in
effect from time to time, but not to exceed the maximum contract rate permitted
by the applicable usury laws of the State of California. Interest will be
computed from the date of written notification of exceptions to the date the
audited Party reimburses the auditing Party for any exception. The cost of such
audit shall be paid by the auditing Party; provided, however, that in the event
an audit verifies overcharges of five percent (5%) or more, then the audited
Party shall reimburse the auditing Party for the cost of the audit.
24.5 This right to audit shall extend for a period of three (3) years
following the date of final payment under this Agreement. Each Party and each
subcontractor shall retain all necessary records and documentation for the
entire length of this audit period.
Section 25: Miscellaneous
25.1 Unless otherwise stated in this Agreement: (a) any reference in this
Agreement to a section, subsection, attachment or similar term refers to the
provisions of this Agreement; (b) a reference to a section includes that section
and all its subsections; and (c) the words "include," "includes," and
"including" when used in this Agreement shall be deemed in each case to be
followed by the words "without limitation." The Parties agree that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting Party shall not be employed in the interpretation of this
Agreement.
25.2 The provisions of this Agreement are for the benefit of the Parties
and not for any other person or third party beneficiary. The provisions of this
Agreement shall not impart rights enforceable by any person, firm or
organization other than a Party or a successor or assignee of a Party to this
Agreement.
25.3 The descriptive headings of the various sections of this Agreement
have been inserted for convenience of reference only and shall in no way define,
modify or restrict any of the terms and provisions thereof.
25.4 Any waiver at any time by either Party of its rights with respect to a
default under this Agreement, or with respect to any other matter arising in
connection with this Agreement, shall not be deemed a waiver with respect to any
other or subsequent default or matter and no waiver shall be considered
effective unless in writing.
25.5 Each Party shall be responsible for paying its own attorneys fees and
other costs associated with this Agreement, except as provided in Sections 6 and
7 hereof. If a dispute exists hereunder, the prevailing Party, as determined by
the CPUC, or as may otherwise be determined by the dispute resolution procedure
contained in Section 15 hereof, if used, or by a court of law, shall be entitled
to reasonable attorneys fees and costs.
25.6 To the extent that the CPUC has a right under then-current law to
audit either Party's compliance with this Agreement or other legal or regulatory
requirements pertaining to Direct Access transactions, that Party shall
cooperate with such audits. Nothing in this Section shall be construed as an
admission by either Party with respect to the right of the CPUC to conduct such
audits or the scope thereof.
25.7 Except as otherwise provided in this Agreement, all rights of
termination, cancellation or other remedies in this Agreement are cumulative.
Use of any remedy shall not preclude any other remedy in this Agreement.
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The Parties have executed this Agreement on the dates indicated below, to be
effective upon the later date.
On Behalf of ESP On Behalf of Edison
By: ▇▇▇▇▇ ▇▇▇▇▇▇ By: -----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Director Title: VP, Cust. Solutions Bus. Unit
Date: 01/01/1998 Date: 01/01/1998
ATTACHMENT A
A. Definitions:
Billing Services - The consolidated billing services described in the relevant
direct access tariff which are provided by Edison and/or ESP.
Consolidated ESP ▇▇▇▇ - The consolidated ▇▇▇▇ prepared and presented by ESP to
an end-use customer which includes the customer's ESP Charges and Edison
Charges.
Consolidated ▇▇▇▇▇▇ ▇▇▇▇ - The consolidated ▇▇▇▇ prepared and presented by
Edison to an end-use customer which includes the Customer's ESP Charges and
Edison Charges.
Direct Access Customers - An end-use customer located within Edison's service
territory who purchases Direct Access Services through the ESP.
ESP Charges - Charges for Direct Access Services provided by the ESP.
Metering Services - The meter installation, maintenance and related services
described in the relevant direct access tariff which are provided by Edison
and/or ESP.
Meter Reading Services - The meter reading and related services described in the
relevant direct access tariff which are provided by Edison and/or ESP.
Edison Charges - Charges (a) for services provided by Edison; or (b) which are
energy-related and which are approved by the CPUC or the Federal Energy
Regulatory Commission (including any Competition Transition Charges or Fixed
Transition Amount Charges owing to Edison or its affiliates, as those terms are
defined under the California Public Utilities Code). Fixed Transition Amount
Charges are also referred to as Trust Transfer Amount (TTA) Charges.
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B. Contact Persons (Section 13.3):
1. Billing Services
Edison Contact: ▇▇▇ ▇▇▇▇▇▇▇▇▇
ESP Contact:
2. Metering and Meter Reading Services
Edison Contact: ▇▇▇ ▇▇▇▇▇▇▇▇▇, metering/▇▇▇ ▇▇▇▇▇▇▇▇, meter reading
ESP Contact: ▇▇▇▇▇ ▇▇▇▇▇▇
C. Parties Representatives (Section 15.1):
Edison Representative: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇
ESP Representative: ▇▇▇▇▇ ▇▇▇▇▇▇