SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
Agreement Number:
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This Energy Service Provider Service Agreement (this "Agreement")
is made and entered into as of this 20th day of April, 1998 by and
between "Full Power Corporation" ("ESP"), a corporation organized
and existing under the laws of the state of Ohio 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 Edison'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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
SECTION 3: TERM OF SERVICE
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 option 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 xxxx and 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
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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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 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 Indemnified 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 Workers 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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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
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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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
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: Xxxxxx X. Xxxxxxx
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Business Address: 00000 Xxxxxxx Xxx., Xxxxx 000
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Xxxxxxxx, XX 00000
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Facsimile: 000-000-0000
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IF THE NOTICE IS TO EDISON:
Contact Name: Xxxxxx X. Xxxxx
Business Address: 000 Xxx Xxx, 0xx Xxxxx
Xxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
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
The Parties expressly agree that time is of the essence for
all portions of this Agreement.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE 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
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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
SECTION 17: FORCE MAJEURE
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
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
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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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.
/X/ CONSOLIDATED EDISON BILLING. If ESP is selecting this
--- billing option, indicate the primary method for notifying
Edison of ESP charges (check one):
/X/ 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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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 xxxxxxxx. 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 xxxxxxxx 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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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.
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
--------------------------- -----------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
------------------------- -------------------------
Title: PRESIDENT Title: Vice President, Customer
------------------------ Solutions Bus. Unit
--------------------------
Date: 4-9-98 Date: 5/14/98
------------------------- --------------------------
[SEAL]
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SOUTHERN CALIFORNIA EDISON COMPANY
ENERGY SERVICE PROVIDER SERVICE AGREEMENT
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 XXXX - The consolidated xxxx prepared and presented by ESP
to an end-use customer which includes the customers ESP Charges and
Edison Charges.
CONSOLIDATED XXXXXX XXXX - The consolidated xxxx prepared and presented by
Edison to an end-use customer which includes the Customers 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 Xxx Xxxxxxxxx (000) 000-0000
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ESP Contact Xxxxxx X. Xxxxxxx (000) 000-0000
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2. METERING AND METER READING SERVICES
Edison Contact Xxxx Xxxxxxxx, metering (000) 000-0000
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Xxx Xxxxxxxx, meter reading (000) 000-0000
ESP Contact Xxxxxx X. Xxxxxxx (000) 000-0000
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C. PARTIES' REPRESENTATIVES (SECTION 15.1):
Edison Representative: Xxxxxx X. Xxxxx
------------------------------------
ESP Representative: Xxxxxx X. Xxxxxxx (000) 000-0000
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