SERVICE AGREEMENT
BY AND BETWEEN
MASSACHUSETTS ELECTRIC COMPANY
AND
AllEnergy MARKETING, LLC
This Agreement is made and entered into as of the 1st day of January,
1997 (this "Agreement") by and between AllEnergy Marketing Company, LLC,
("Client") having offices at Three University Office Park, 00 Xxxxxx Xxxx,
Xxxxxxx, XX 00000 and MASSACHUSETTS ELECTRIC COMPANY ("MECO") having
offices at 00 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000.
Section 1: Description of Services
MECO will provide Client with customer services described in Exhibit A
(the "Services"). The descriptions of the Services in Exhibit A are
incorporated herein and made a part hereof.
Section 2: Extent of Agreement
MECO shall exercise all reasonable skill, care and diligence in
carrying out the Services, shall carry out its duties in accordance with
recognized professional standards and shall provide everything reasonably
necessary to complete the Services in accordance with the requirements of
this Agreement.
Section 3: Term
This Agreement shall be in effect as of the date hereof and through the
final billing cycle for each Customer (as defined in Exhibit A) following
termination of the Mass. Electric Pilot (as defined in Exhibit A), unless
earlier terminated by the parties as provided herein. Either party may
terminate this Agreement by providing 90 days written notice.
Notwithstanding anything to the contrary herein, the obligation to pay the
other party money due under this Agreement shall survive expiration and
termination of this Agreement. Further, upon expiration or termination of
this Agreement the parties shall cooperate with each other in order to
complete all outstanding matters related to this Agreement in a timely and
orderly manner.
Section 4: Payment Terms
Payment terms are set forth in Exhibit B, attached hereto and made a
part hereof.
Section 5: Limitation of Liability
In no event shall either party be liable to the other party or to any
other third party for any indirect, reliance, multiple, incidental,
special, consequential, or punitive damages (including those which arise
under M.G.L. c. 93A) connected with or arising out of the Agreement,
including, but not limited to, from MECO's performance of any Services
hereunder, whether or not either party was advised of the possibility of
such damages. In no event shall MECO be liable in contract, tort, or
otherwise (including negligence, warranty, or strict liability) for amounts
in excess of the total of all amounts earned by MECO in connection with
this Agreement, whether or not MECO was advised of the possibility of such
damages.
Section 6: Warranties
MECO and its affiliates, successors and assigns make no WARRANTY OF
ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
with respect to the Services.
Section 7: Indemnification
To the fullest extent permitted by law, Client shall indemnify and hold
harmless, and at MECO's option, defend MECO and its affiliates, and their
officers, directors, employees, agents, servants, and assigns
(collectively, "MECO Parties") from and against any and all claims and /or
liability for losses, expenses, damage to property, injury to or death of
any person, including, but not limited to, Client's employees, MECO's and
its affiliates' employees, subcontractors and subcontractors' employees,
or any other liability incurred by MECO or its affiliates, including
expenses, legal or otherwise, caused wholly or in part by any negligent,
grossly negligent or willful, act or omission of Client, its officers,
directors, employees, agents, servants, or assigns arising out of this
Agreement, except to the extent caused by any negligent, grossly negligent
or willful, act or omission of the MECO Parties.
Section 8: Assignment and Subcontracting
MECO shall not assign or subcontract the Services or any part thereof
without Client's written consent, which Client shall not unreasonably
withhold. Client may not assign its rights or obligations under this
Agreement except with the written consent of MECO.
Section 9: Independent Contractor
MECO is, and shall at all times remain, an independent contractor.
Section 10: Entire Agreement
This Agreement constitutes the entire Agreement between the parties
with respect to the Services and all previous representations, either
written or oral, are hereby annulled and superseded.
Section 11: No Third Party Beneficiaries
The work performed by MECO under this Agreement is for Client's use and
benefit only, and not for the use and benefit of any other person, party,
or entity. Any use of or reliance upon the work product provided under or
in connection with this Agreement by any party other than Client shall be
at the sole risk of such party. MECO shall have no liability under
contract, third party beneficiary theory, tort, strict liability, or
otherwise for any third party's use or reliance upon work performed
pursuant to this Agreement.
Section 12: Confidentiality
MECO agrees to take reasonable measures to hold in confidence all
pricing related information provided and specifically designated by Client
as Confidential Information, other than that of a clearly public nature or
that which Client has acquired from other sources and except as otherwise
required to be disclosed by law, regulation or judicial or administrative
order.
Section 13: Force Majeure
MECO shall not be considered in default under this Agreement or
responsible in tort, strict liability, contract or other legal theory to
Client for damages of any description for any interruption or failure of
service or deficiency in the quality or quantity of service, or any other
failure to perform if such failure is caused by factors beyond MECO's
reasonable control, including without limitation, storm, flood, lightning,
earthquake, fire, explosion, equipment failure, civil disturbance, labor
dispute, act of God or the public enemy, action of a court or public
authority, scheduled or unscheduled withdrawal of facilities from operation
for maintenance or repair, or any other cause beyond the reasonable control
of MECO; provided, however, that MECO shall use reasonable efforts to
remedy or correct any such failure or interruption as soon as reasonably
possible.
Section 14: Amendments and Modifications
This Agreement may not be amended, modified, superseded, or waived, in
whole or in part, except by a written instrument signed by authorized
representatives of each of the parties hereto. A waiver in one or more
instances of any rights under this Agreement shall not constitute a waiver
of such rights for other or future instances.
Section 15: Enforceability
Should any portion of this Agreement be judicially declared invalid,
unenforceable, or void, such decision shall not have the effect of
invalidating or voiding the remainder of this Agreement, and the parties
hereto agree that the portion or portions of this Agreement so held to be
invalid, unenforceable, or void shall be deemed to have been stricken and
the remainder shall have the same force and effect as if said portions or
portions had never been included herein.
Section 16: Headings
Headings are provided herein for the convenience of the parties and
shall not be construed to explain or modify any part of this Agreement.
Section 17: Notices
Except as otherwise provided in this Agreement, any notices under this
Agreement shall be in writing and shall be sufficient if delivered by (I)
hand, (ii) U. S. Mail, first class postage pre-paid, or (iii) facsimile,
with confirmation of receipt to the parties as follows:
For MASSACHUSETTS ELECTRIC COMPANY:
Xxxxxxx X. Xxxx
Vice President
00 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Phone: (508) 000- 0000
Facsimile: (508) 357- 4655
For ALLEnergy MARKETING COMPANY, LLC:
Xxxxx Xxxx
Vice President and Treasurer
Three University Office Park
00 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Phone: (000)000-0000
Fax: (000 000-0000
Section 18: Applicable Law
This Agreement shall be governed by, and construed in accordance with,
the laws of the Commonwealth of Massachusetts without regard to the
principles of conflict of laws contained therein.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by its duly authorized representative as of the day and the year
first set forth above.
AllEnergy MARKETING COMPANY, LLC
By: ___________________________________
Title: __________________________________
MASSACHUSETTS ELECTRIC COMPANY
By: ____________________________________
Title: ___________________________________
EXHIBIT A
SERVICES
---------
Client has requested that MECO provide it with customer service support for
all of their customers participating in the Massachusetts Electric
Company's service territory under the Massachusetts Electric Company
Choice: New England Pilot Program ("Mass Electric Pilot"). Customer service
support which includes, but is not limited to, providing customer service
representatives to answer phone calls from the Clients customers will be
provided consistently with the pilot program design, its administrator's
rules, and the DPU approval dated April 3, 1996.
MECO will provide the Client with a unique toll free (888) phone number
that will be printed on the Client portion of the xxxx. Phones will be
answered using the Clients name, responding to a wide variety of call
types. Customer service and marketing support will be provided Monday -
Friday 8:00am-4:30pm. Calls received after 4:30 will be routed to a voice
message box giving the business hours and offering the customer an
opportunity to leave a message for a return phone call during normal
business hours.
Customer Service Support:
The MECO customer service staff will answer customer questions pertaining
to the Client portion of the xxxx and perform any research and analysis
work needed to resolve a customer's inquiry. The staff will be supplied
with xxxx and payment history for each customer. This history includes
total amount due, amount of payments made, and dates of account activity.
Sales and Marketing Support:
MECO will support sales and marketing programs for the Client. To ensure
that quality service is provided to the Client, MECO will develop and
deliver training to its customer services representatives and coaches to
support the marketing programs of the Client.
All sales and marketing materials mailed to prospective or existing
customers must be reviewed and signed off on by MECO ten days before
material is to be mailed.
Charges associated for providing sales and marketing support and training
needed to support such services are described in Exhibit B.
Reporting:
MECO has the ability to develop customized reports outlining pertinent
information such as: average speed of answer, number of calls received,
average length of call, etc., for all of Client's customers. Requests to
create a customized report will result in additional charges in accordance
with Exhibit B.
Notice of Modifications:
MECO will evaluate any request received and quote each on a time and
expense basis.
Client shall submit all requests for modification to services via certified
mail to the following:
Massachusetts Electric Customer Service & Operations Center
c/o Xxxxxxx X. Xxxxxxxx
Director, Customer Service Center
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
EXHIBIT B
PRICING
--------
Charges for Customer Service Support:
All services outlined under this contract will be provided on a time and
expense basis and be invoiced at cost to the Client.
Invoices/Payment Terms:
Client will receive a monthly invoice from MECO. Payment is due upon
receipt. Upon the expiration or termination of the parties' obligations
under this Agreement, any monies or other charges due to either party to
this Agreement shall be paid within 30 days; provided, however, any refund
that arises under Price Adjustment below shall be payable from MECO within
30 days from the date that it has the necessary information to calculate
the true up pricing. Bills not paid within the 30 days by either party
shall bear interest at the rate of 1 1/2% per month on any unpaid balance.
Reporting:
MECO will review any request to create a customized report and charge
Client on a time and expense basis at actual cost to develop such reports.
Training:
Any cost incurred as a result of developing, delivering or the actual
training of customer service representative and coaches will be tracked and
invoiced on a time and expense basis.
Voice and Data Communications:
MECO will provide Client with access to shared Local Exchange Carriers
(LEC) or Long Distance Carriers (LDC) facilities. Client will be invoiced
based on their prorated share of all usage and access charges.
1. At the Clients' option, MECO would establish facilities that are
exclusively provided by Local Exchange Carriers (LEC) or Long Distance
Carriers (LDC). Client would be invoiced for all toll charges and
monthly costs associated with this service.
Price Adjustment:
The charges for customer related services set forth herein will be adjusted
to reflect actual costs incurred by MECO based upon the Public Utility
Holding Company Act of 1935 and SEC regulations and orders. Said
adjustments will be calculated annually following the close of each
calendar year applicable to this Agreement.
