Version: October 11, 2023
This Commercial Terms of Service Agreement for Property Owners and Managers (“Terms of Service” or “TOS”) authorizes Eligo Energy TX, LLC dba ResidentShield Power, a wholly owned subsidiary of Yardi Systems, Inc. (“Supplier”) (Certificate No. 10246), with a mailing address of PO Box 209449, Austin, TX 78720-9282, to change my (“Customer” or “Client”) electric service provider (“REP”) in the territory of the Utilities (“Utility” or “TDSP” or “TDU”) listed on the attached Schedules A (Continuous Service Agreement Accounts) and B (Common Area Accounts), as applicable. The ResidentShield Power Agreement, the attached Schedules A and B, and this TOS together form Customer’s entire agreement (“Contract”) with Supplier for the supply of electricity to the Premises listed in Schedules A and B (“Premises”). By accepting electricity service from Supplier, Customer authorizes Supplier to become Customer’s new REP and to act as Customer’s agent to perform the necessary tasks to establish Customer’s electric service account(s) with Supplier, Customer is entering into a contract with Supplier, and Customer will be bound by the TOS and all Contract documents. This Contract will become effective when executed by all parties (“Effective Date”).
Commercial Terms of Service: This document provides the terms and conditions that apply to Customer’s purchase of electricity from Supplier for (1) Continuous Service Agreement Accounts identified in Schedule A and (2) Common Area Accounts, if any, identified in Schedule B. Customer represents that it is not a residential or small commercial class customer or is a non-residential customer whose load is part of an aggregation in excess of 50 kW. Pursuant to 16 TAC §25.471(a), Customer agrees that the customer protection rules found in Chapter 25, Subchapter R of the Commission’s rules (except those rules which cannot be waived) do not apply to service provided under this Contract or its relationship with Supplier. Customer acknowledges, understands, and accepts that this Contract reflect a materially different level of customer protections than would otherwise apply under the PUCT Customer Protection Rules. Customer further acknowledges and agrees that Customer has the right to consult an attorney of its own selection and Customer has voluntarily consented to this waiver.
Continuous Service Agreement (“CSA”): This provision establishes a continuous service arrangement with Supplier for Customer’s Premises identified in Schedule A. Supplier is authorized to automatically transfer responsibility for electric service and bill payment to Customer once a tenant has vacated a rental unit (an “Unoccupied Unit”), until such Unoccupied Unit is leased to a new tenant or de-energized. Supplier will, following a request by the Unit’s tenant to discontinue service at the Unit, and upon receipt of notification from the Electric Reliability Council of Texas (“ERCOT”), establish an account related to that Unit in Customer’s name as of the effective date of termination of service by the tenant. Customer understands and agrees that it may be charged a transfer-related fee from the TDSP each time an automatic transfer is performed. In the event there are balances due under this Contract for an Unoccupied Unit that is subsequently leased or de-energized before such balances are paid in full, Supplier shall have the right to transfer such unpaid balances to an active account under this Contract. The parties may agree to the addition of Units to Schedule A upon written amendment.
Product Type: Schedules A and B contain Customer’s specific product type and term information. Supplier offers the following products: Fixed Rate Products: A retail electric product with a term of at least three months for which the price (including all recurring charges and ancillary service charges) for each billing period of the contract term is the same throughout the contract term, except that the price may vary from the disclosed amount solely to reflect actual changes in TDSP charges, changes to ERCOT or Texas Regional Entity, Inc. (“TRE”) administrative fees charged to loads or changes resulting from federal, state or local laws that impose new or modified fees or costs on a REP that are beyond the REP’s control. The price may not vary from the disclosed amount to reflect changes in ancillary service charges unless the commission expressly designates a specific type of ancillary service product as incurring charges beyond the REP’s control for a customer’s existing contract.
Pricing: For Fixed Rate Products, during the initial Contract Term, Customer shall pay the fixed generation rate (“Fixed Rate”) as provided in Schedule A and B, as applicable, at the next applicable billing period. The Fixed Rate does not include Taxes, including but not limited to, Sales Tax and Seller(s) Texas Gross Receipt Tax, which may be charged to Customer. Any tariffs, rates, riders, fees, and customer load profile(s) that are charged or authorized by the TDSP, ERCOT, TRE, the Public Utility Commission of Texas (“PUCT”) or another party with respect to the acquisition, sale, delivery, or purchase of electricity after enrollment are not included in the Fixed Rate. The economic impact of any such changes shall be passed through to Customer without markup. Demand Charges (if applicable) are assessed by Customer’s Utility and appear on Customer’s monthly invoice as a separate line item. Demand charges are based on each customer’s maximum 15-minute demand on the Utility distribution system each month. Demand is measured in kilowatts (“kW”). Customer is billed according to kW of demand for Customer’s rate. If Customer has a demand meter, Customer’s price shall include the demand charges specified in Schedules A and B, as applicable. The demand charge, if applicable, equals the amount per kW or kVA, times the kW or kVA recorded at each demand meter during the specified billing period. Customer agrees to pay non-recurring fees charged by the TDSP that are necessary to implement and/or maintain electricity service for Customer. Non-recurring fees by the TDSP may include service connection, disconnection or reconnection fees, meter test fees, or special out-of-cycle meter read fees. Non-recurring fees will appear as separate line items on Customer’s bill.
Contract Term: The initial Contract Term is specified in Schedules A and B, as applicable. Customer’s electricity supply service shall begin at the first available meter reading after ERCOT has confirmed Supplier as Customer’s Retail Electric Provider (“REP”) for the Premises listed in Schedules A and B. Customer’s enrollment may not be processed timely if Customer provides erroneous Customer data. Supplier shall not be responsible for correcting Customer data or informing Customer of the errors but will use commercially reasonable efforts in correcting the errors. Supplier does not control timeliness of switching Customer’s energy and has no responsibility for the enrollment processing period. Customer acknowledges that Supplier cannot guarantee a switch of Customer’s account to Supplier by a specific date and hereby holds harmless Supplier from any liability for, or arising out of, delays in this process.
Notice of Contract Expiration; Contract Continuation: For all products except Variable Rate Products, a contract expiration notice will be sent to Customer at least 14 days before the end of Customer’s initial Contract Term specified in Schedule A and B, as applicable.If Customer does not enter into a renewal contract with Supplier or switch to another Supplier upon the expiration of the initial Contract Term, Customer shall continue to be servedby Supplier automatically under a default renewal product (“Default Renewal Product”) on a monthly basis (“Default Renewal Term”) after the end of Customer’s initial Contract Term, until such time that Customer enters into a renewal contract with Supplier, switches toanother provider, or Supplier terminates or disconnects Customer’s electricity service. During a Default Renewal Term, the price of the Default Renewal Product will be a monthly variable rate that may be periodically adjusted to market conditions, such as current and predicted weather patterns, retail competition, wholesale commodity energy costs, fluctuations in energy supply and demand, industry regulations, pricing strategies, costs to serve customers, among many factors.
Taxes and Title: Customer shall be responsible for, pay, and indemnify Supplier for any and all Taxes. “Taxes” means all federal, state and local taxes, fees, governmental charges, and assessments presently or hereafter imposed on Customer, as purchaser of electricity, on Supplier, as seller of electricity, or on electricity sales transactions, including but not limited to sales and use taxes, gross receipts taxes, municipal administrative fees, and generation, utility, TDSP, regulatory, or electricity taxes and assessments. If Customer is a tax-exempt entity, Customer shall provide Supplier with the necessary certificates and/or documentation to qualify for such status. Customer shall also be liable for all assessments and other charges imposed by the PUCT or any governmental authority, on the sale of electricity by Supplier to Customer. Title, liability, and risk of loss shall pass from Supplier to Customer at the delivery point.
Notice of Changes to Contract Provisions: Supplier reserves the right to make changes to this Contract at any time with appropriate notice, except for the length of Customer’s Contract Term for all product types and Customer’s price or pricing formula for Fixed Rate Products. Supplier will notify Customer of any material change to the Contract in writing at least 14 days before any change to the Contract will be applied to Customer’s bill or take effect, whichever is applicable. If Customer does not cancel the Contract before the effective date of the change, the change will become effective on the date stated in the notice. Notice is not required for a change that is beneficial to Customer.
Cancellation: Customer may cancel or terminate this Contract by switching to a new REP at any time. If Customer cancels this Contract before the end of the initial Contract Term, Customer agrees to provide at least ninety (90) days advance notice, and Customer must select another REP to continue to receive electricity service. Any Third Party Services that are included on Customer’s electricity bill will automatically terminate when Customer’s electricity service contract with Supplier is cancelled. Supplier’s obligations will end after the meter read date where Supplier is no longer designated as Customer’s REP or when Customer’s electricity service is disconnected by the TDSP. Customer’s obligations under the Contract will end when their account balance is paid in full, subject to any survival or early termination provisions.
Removal of Premises: During the initial Contract Term, Customer shall provide Supplier at least thirty (30) calendar days prior written notice in the event of closure or a change of management of any Premises, such that the change of management would cause the removal of any Premises from this Contract. If such notice is not provided, Supplier, in its sole discretion, may reevaluate the terms of this Contract and provide Customer with new Pricing (which Customer may reject) and/or terminate provision of electric service by executing “move-out” transactions with respect to Customer’s ESI IDs served under this Contract. Customer may be responsible for payment of any actual damages incurred by Supplier relating to or arising from any such removal of Premises.
Disconnection of Electricity Service: FOR POST-PAID SERVICE, SUPPLIER MAY REQUEST DISCONNECTION OF CUSTOMER’S ELECTRICITY SERVICE IF CUSTOMER DOES NOT PAY THE PAST DUE AMOUNT OF THEIR ELECTRICITY SERVICE BILL BY THE DUE DATE ON THE DISCONNECTION NOTICE, WHICH SHALL BE PROVIDED BY THE SUPPLIER TO THE CUSTOMER IN WRITING AT LEAST TEN (10) CALENDAR DAYS BEFORE SUPPLIER DISCONNECTS ELECTRICITY SERVICE. Supplier may request disconnection of Customer’s electricity service without prior notice immediately under specific situations, including the existence of a dangerous condition at Customer’s service address or theft of service. Supplier may also request disconnection of Customer’s electricity service without prior notice if Customer provides fraudulent or false information to obtain electricity service from Supplier.
Events of Default: An “Event of Default” shall mean, with respect to the party to whom the following applies (the “Defaulting Party”), the occurrence of any of the following: (a) early termination of the Contract by the Defaulting Party prior to the end of the initial Contract Term without providing requisite notice under the Cancellation section of this Contract; (b) any representation or warranty made by such Defaulting Party herein being false or misleading in any material respect when made or ceases to remain true during any Term; (c) the failure of such Defaulting Party to perform any material covenant or obligation set forth in this Contract (including specifically failure to pay undisputed portions of bills) and such failure is not remedied within five (5) business days after written notice; (d) Customer (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization, receivership, administration or other similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes bankrupt or insolvent (however evidenced), or (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets as part of bankruptcy proceeding or reorganization for the benefit of creditors; (e) Customer consolidates or merges with or into, or transfers all or substantially all of its assets to, another entity and, at the time of such consolidation, amalgamation, merger or transfer, the resulting, surviving or transferee entity fails to assume all the obligations of Customer under this Contract; or (f) Customer’s failure to cooperate with Supplier as reasonably required in order for Supplier to perform its obligations under this Contract.
Suspension; Early Termination: If an Event of Default occurs, the “Non-Defaulting Party” may, at its option and in its sole discretion, take any one or more of the following actions: (1) suspend its performance under this Contract; (2) terminate this Contract by sending written notice to the Defaulting Party providing the termination date for this Contract (the “Early Termination Notice”); or (3) the Defaulting Party shall pay to the Non-Defaulting Party an early termination amount (the “Settlement Amount”) as follows: the Settlement Amount shall equal the greater of (a) Retail Margin, plus Supply Termination Costs, plus Enforcement Costs or (b) an early termination fee equal to the greater of $1,000 or $0.02 multiplied by the estimated kWh remaining in the initial Contract Term; or (c) maximum allowed by law.
As used herein, the following terms shall have the following meanings: “Enforcement Costs” means any attorneys’ fees, expenses, and costs incurred by the Non-Defaulting Party in connection with enforcing its rights under this Contract. “Remaining Performance” means the remaining performance, including kWhs, under this Contract for the remainder of the initial Contract Term had it not been terminated early, based on historical usage. “Retail Margin” means the amount of Supplier’s forecasted retail margin under this Contract, determined based on the differential between wholesale and retail market prices at the time of this Contract or any extension hereof, allocable to the Remaining Performance. “Supply Termination Costs” means any loss or cost that Supplier would incur in terminating or liquidating the portion of any supply contracts, hedges, or related trading positions or arrangements held by Supplier allocable to the Remaining Performance, whether or not such action is taken.
Supplier shall calculate the Settlement Amount in its commercially reasonable discretion, including where applicable, Supplier estimates of market prices and forward market prices. Such calculation shall be included in any Early Termination Notice provided by Supplier or, if the termination date selected by Supplier is after the date of the Early Termination Notice or Customer delivers the Early Termination Notice, Supplier shall provide such calculation to Customer within a reasonable period following the termination date. The Settlement Amount shall be paid by the Customer that owes it within 21 calendar days after the postmark date on the notice. The Parties acknowledge and agree that the Settlement Amount constitutes a reasonable approximation of harm or loss and is not a penalty or punitive in any respect. Each party agrees that it has a duty to mitigate damages and to use commercially reasonable efforts to minimize any damages it may incur as a result of the other party’s performance or non-performance of this Contract.
Billing, Payment and Payment Arrangements:
Supplier shall provide a monthly bill that will include Current Charges and the Amount Due that will be due and payable on the date shown on the bill. Supplier may issue a bill less frequently if meter readings or usage information from the TDSP or ERCOT are not received in time to prepare and send a monthly bill or if Customer agrees to accept alternate arrangements.
Customer’s failure to timely pay any undisputed portion of the bill when due is a material breach subject to the Events of Default. Additionally, any undisputed portion of the bill shall accrue interest from the bill’s due date until paid, at the rate of 1.5% per month or the maximum rate allowed under applicable Law whichever is less. “Law” means any law, statute, regulation, rule, ERCOT protocol, exchange rule, decision, writ, order, decree or judgment, or any interpretations by any court, agency or instrumentality that has jurisdiction, including ERCOT. PUCT Substantive Rules and guidelines can be viewed at www.puc.state.tx.us/agency/rulesnlaws/subrules/electric/Electric.aspx. If Customer fails to timely pay the undisputed amounts due, and Supplier refers Customer’s outstanding balance to an attorney or collection agent for collection, or file a lawsuit, or collect their outstanding balance through probate, bankruptcy or other judicial proceedings, then Customer agrees to pay reasonable fees and expenses (including attorney fees) that Supplier incurs in the collection process.
Antidiscrimination: Supplier cannot deny service or require a prepayment or deposit for service based on a residential or Small Commercial Customer’s race, creed, color, national origin, ancestry, sex, marital status, lawful source of income, level of income, disability, familial status, location in an economically distressed geographic area, or qualification for low income or energy efficiency services.
Net Metering: As permitted by law, Supplier reserves the right not to serve net metering Customers. If during the Contract Term Customer becomes a net metering Customer, Supplier reserves the right to cancel this Contract at any time, regardless of any other cancellation provision in this Contract. Net Metering credits are not eligible to rollover to the next meter year. Customer will not be eligible for a cashout at the end of the year for over-generated energy.
Emergencies and Power Outages; Contact Information: In the event of an emergency or power outage, Customer should contact the TDSP at the number listed below or Emergency Services at 911. Customer shall contact Supplier with any change in Customer’s email address and /or withdrawal of consent for electronic retention of Customer information.
|Outage Phone Number: 888-866-7456
Requests for Service Order: 888-866-7456
|Outage Phone Number: 888-313-4747
Requests for Service Order: 888-313-6862
|Local Outage Phone Number: 713-207-2222
Toll-Free Outage Phone Number: 1-800-332-7143
|Outage Phone Number: 866-223-8508
Requests for Service Order: 877-373-4858
|Outage Phone Number: 866-223-8508
Requests for Service Order: 877-373-4858
Customer Care; Complaints; Disputes: Customer shall contact Supplier for any questions, concerns, or complaints regarding their service with Supplier by contacting their assigned account manager or by calling (800) 866-1124. In the unlikely event Supplier cannot immediately respond to Customer’s question or complaint, Supplier will promptly investigate the matter and report its findings to Customer. During this time, Supplier shall not initiate collection activities, including disconnection of service and reporting customer’s delinquency to a credit reporting agency, with respect to the disputed portion of Customer’s bill. If for any reason Customer is not satisfied with Supplier’s response, Customer may contact the PUCT. In the event of a dispute arising out of or related to the Agreement, Customer and Supplier will use commercially reasonable efforts, in good faith, to informally resolve the dispute. These efforts shall be confidential and protected under applicable law as compromise and settlement negotiations. If after 30 calendar days of good faith negotiations the parties are unable to reach a mutually satisfactory resolution, either party may pursue its rights and remedies under applicable law.
Governing Law and Venue: Customer and Supplier acknowledge and agree that the transactions contemplated by this Contract may constitute “forward contracts” within the meaning of the United States Bankruptcy Code, and further acknowledge and agree that Supplier is a “forward contract merchant”. CUSTOMER’S CONTRACT WITH SUPPLIER IS GOVERNED BY THE LAWS OF THE STATE OF TEXAS. THE TEXAS UNIFORM COMMERCIAL CODE APPLIES TO THE TERMS OF SERVICE AND ELECTRICITY IS DEEMED A “GOOD”. The Uniform Commercial Code can be viewed at the following website: www.statutes.legis.state.tx.us/?link=BC. Any action or proceeding related to or arising out of the Agreement shall be resolved only in a court of competent jurisdiction in the City of Austin, Texas (or, if there is no court of competent jurisdiction in the City of Houston, Texas, then the court of competent jurisdiction closest to the City of Austin, Texas), and Customer and Supplier expressly consent to the personal jurisdiction of such courts and waive any right to cause any action or proceeding to be brought or tried elsewhere.
Unenforceability: If either party or its activities under this Contract become subject to any Law enacted during the Contract Term that renders the Contract unenforceable or illegal, then either Customer or Supplier may terminate the Contract without the consent of, and upon 30 days’ notice to, the other, and without any obligation, payment or otherwise (other than payment obligations for electricity previously supplied to Customer).
Assignment: Customer may not assign this Contract, in whole or in part, or any of Customer’s rights or obligations under the Contract, without Supplier’s prior written consent. Supplier may, without Customer’s consent, as part of any financing or other financial arrangements, assign, sell or pledge this agreement or its accounts, revenues, or proceeds, or assign this agreement to an affiliate of Supplier or to any other person or entity succeeding to all or a substantial portion of the assets of Supplier. This Contract is binding upon Customer and Supplier, and each party’s heirs, successors and permitted assigns. Any required notice of assignment will be considered complete when it is mailed to the Customer’s address on file with the Supplier. There are no third-party beneficiaries to this Contract.
Limitations of Liability: CUSTOMER AGREES THAT CAUSES AND EVENTS BEYOND SUPPLIER’S CONTROL, INCLUDING ACTS OF GOD, ACTS OF ANY GOVERNMENTAL AUTHORITY, ACCIDENTS, STRIKES, LABOR TROUBLE, AND EVENTS OF FORCE MAJEURE OCCURRING WITH RESPECT TO THE TDSP, ERCOT, OR OTHER THIRD PARTY SYSTEMS OR ASSETS (A FORCE MAJEURE EVENT), MAY RESULT IN INTERRUPTIONS IN SERVICE AND THAT SUPPLIER SHALL NOT BE LIABLE FOR THOSE INTERRUPTIONS. CUSTOMER ALSO AGREES THAT SUPPLIER IS NOT RESPONSIBLE FOR GENERATING CUSTOMER’S ELECTRICITY OR FOR TRANSMITTING AND DISTRIBUTING ELECTRICITY TO CUSTOMER’S SERVICE ADDRESS. FURTHERMORE, CUSTOMER AGREES THAT SUPPLIER SHALL NOT BE LIABLE WITH RESPECT TO ANY THIRD PARTY SERVICES; THAT SUPPLIER’S LIABILITY NOT EXCUSED BY REASON OF FORCE MAJEURE OR OTHERWISE WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY AND CAPPED AT SUPPLIER’S LAST 12 MONTHS OF RETAIL MARGIN UNDER THIS AGREEMENT; NEITHER PARTY IS LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES. CUSTOMER WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THESE LIMITATIONS APPLY EVEN IF THE DAMAGES RESULT FROM NEGLIGENCE, WHETHER SOLE, JOINT, CONCURRENT, OR ACTIVE OR PASSIVE. THERE ARE NO THIRD PARTY BENEFICIARIES TO THE CONTRACT.
Representations and Warranties: AS A CUSTOMER UNDER THIS CONTRACT, CUSTOMER REPRESENTS THAT (I) CUSTOMER IS A COMMERCIAL USER OF ELECTRICITY AND INTENDS TO USE THE ELECTRICITY AT ITS PREMISE SERVICE ADDRESS(ES), (II) CUSTOMER HAS EXPERIENCE IN BUSINESS MATTERS THAT ENABLE CUSTOMER TO ENTER INTO AND PERFORM UNDER THE CONTRACT, AND (III) CUSTOMER WILL NOT RESELL OR USE ANY OF THE ELECTRICITY PURCHASED FROM SUPPLIER UNDER THIS CONTRACT AS AN AUXILIARY OR SUPPLEMENT TO ANY OTHER SOURCE OF POWER. THE ELECTRICITY SOLD UNDER THIS CONTRACT WILL BE SUPPLIED FROM A VARIETY OF GENERATING SOURCES. IF CUSTOMER ELECTS TO PURCHASE A RENEWABLE ENERGY PRODUCT, SUPPLIER WILL ENSURE THAT THE APPROPRIATE AMOUNT OF RENEWABLE ENERGY CREDITS (RECs) IS RETIRED TO AUTHENTICATE THE RENEWABLE ENERGY CONTAINED IN THE PRODUCT. RECs MAY BE GENERATED FROM A VARIETY OF RENEWABLE GENERATION, INCLUDING BUT NOT LIMITED TO WIND, HYDRO, SOLAR, AND HEAT RECOVERY. THE TDSP OR ERCOT SYSTEM WILL NOT DELIVER ELECTRICITY FROM A SPECIFIC GENERATING SOURCE TO CUSTOMER’S SERVICE ADDRESS. IF CUSTOMER PURCHASES RENEWABLE ENERGY FROM SUPPLIER, CUSTOMER IS PROVIDING FINANCIAL SUPPORT FOR RENEWABLE ENERGY GENERATION SOURCES AND NOT RECEIVING THE PRECISE ENERGY GENERATED FROM THAT SOURCE. SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THE CONTRACT, AND SUPPLIER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, CONFORMITY TO MODELS OR SAMPLES AND FITNESS FOR A PARTICULAR PURPOSE.
Waiver: If either party waives any one or more defaults by the other in the performance of any of the provisions of the Contract, then such waiver will not be construed as a waiver of any other default or defaults whether of a like kind or of a different nature.
Survival: Obligations regarding indemnity, payment of Taxes, limitations of liability, and waivers, and any provisions that specifically provide for survival, will survive the termination of this Contract indefinitely.
Authorization: Unless prohibited by applicable law, Customer authorizes Supplier to obtain and review information from the Utility(s): consumption history, billing determinants, credit information, public assistance status, existence of medical emergencies, status as to whether Customer has a medical emergency, is human needs, elderly, blind or disabled and data applicable to cold weather periods, tax status and eligibility for economic development or other incentives. This information may be used by Supplier to determine whether it will commence and/or continue to provide energy supply service to Customer and will not be disclosed to a third-party unless required by law. Customer’s execution of this Contract shall constitute authorization for the release of this information to Supplier. This authorization will remain in effect during the Contract. Customer may rescind this authorization at any time by providing verbal or written notice thereof to Supplier. Supplier reserves the right to cancel this Contract in the event Customer rescinds the authorization.
Data Use: Supplier may aggregate, compile, and use Customer’s data in order to improve, develop or enhance the services offered, or to be offered, by Supplier; provided that Customer’s data is not identifiable as originating from, or can be traced back to, Customer or a Customer’s customer, tenant, or resident in such aggregated form.
Consent to Electronic Communications: By entering into this Contract, Customer hereby agrees to receive or obtain any and all Supplier-related communications in electronic form and consents for Supplier to send Customer electronic communications in connection to the Contract. “Communication” means any contracts or amendments thereto, monthly (or other periodic) billing or account statements, account information, disclosures, notices, letters, responses to complaints or claims, account history, privacy policies, any information that Supplier is required by law to provide Customer in writing, and all other future communications from Supplier or its affiliates. Customer specifically consents to receive electronic mail (email) for all communications in connection with this Contract instead of by regular (paper) mail. By consenting, Customer acknowledges and agrees that Customer has the equipment and software necessary to access, view, and retain electronic communications. Customer agrees to provide Supplier with and maintain a valid, active email address. Customer must promptly notify Supplier of any change in their email address and their change will take effect a reasonable time thereafter. Supplier is not liable for any third-party incurred fees, other legal liability, or any other issues or liabilities arising from statements or notifications sent to an invalid or inactive email address that Customer has provided. Supplier reserves the right, at any time, to stop providing Customer electronic communications and provide Customer with paper communication.
Relationship of Parties: Nothing in this Contract establishes a joint venture, fiduciary relationship, partnership or other joint undertaking. Supplier is not acting as Customer’s consultant or advisor, and Customer shall not rely on Supplier in evaluating the advantages or disadvantages of any specific product or service, predictions about future energy prices or any other matter.
Changes In Law or Regulation: In the event that any change in any statute, rule, regulation, order or other law, or procedure, tariff, rate class or other process or charge, promulgated by any governmental authority or Utility, Independent Service Operator (“ISO”), Regional Transmission Operator (“RTO”), other regulated service provider, or requirements, actions or failure to act on the part of governmental authorities, alters to the detriment of Supplier its costs to perform or its economic returns under this Contract (a “Negative Change in Regulation”), Supplier may revise the pricing under this Contract to eliminate the impact of such Negative Change in Regulation. Before any such price revision, Supplier shall provide 30 days written notice to Customer of the Negative Change in Regulation, the resulting price revisions, and the date upon which such revised pricing shall be effective. Customer shall pay the revised price described in such notice, and all other terms and conditions of this Contract shall remain in full force and effect.
Indemnity: Subject to the Limitations of Liability, Supplier shall defend, indemnify, and hold Customer harmless against all claims and liabilities resulting from Supplier’s negligence or breach of this Contract and arising prior to the delivery of the Retail Energy to the relevant Delivery Point, except to the extent such claims and liabilities arise out of Customer’s negligence or breach of this Contract. Customer shall assume full responsibility for any damages or losses relating to the delivery of the Retail Energy at and after its delivery to the relevant Delivery Point and shall defend, indemnify, and hold Supplier harmless against all claims and liabilities arising at and after the delivery of the Retail Energy to the relevant Delivery Point, except to the extent such claims and liabilities arise out of Supplier’s negligence or breach of this Contract.
Confidentiality: Protecting Confidential Information. “Confidential Information” means all data and information that is patented, copyrighted, constitutes a trade secret, or any other information of any kind that belongs to Supplier or Customer. Customer and Supplier agree not to disclose the other’s Confidential Information to any unauthorized third party, except as described below or as expressly permitted by the Agreement. Protection Exceptions. The parties’ obligations to protect Confidential Information do not apply if the information: (1) is by definition not confidential; (2) is no longer confidential (through no fault of the party that would like to disclose it); (3) was obtained by or already in the possession of the party that wants to disclose it, provided it was obtained properly and without violating the Agreement or any prior existing obligation to keep it confidential; or (4) was independently developed (without having used, referred to, or relied on the other party’s Confidential Information) by the party that wants to disclose it. A Confidential Information disclosure by the receiving party either: (A) in response to an enforceable order by a court or other governmental body; (B) as otherwise required by law; or (C) necessary to establish the rights of either party under this Agreement, shall not be a breach of this Agreement by the receiving party or a waiver of confidentiality for other purposes; provided, however, the receiving party shall provide prompt prior written notice of any such Confidential Information disclosure to the disclosing party (to the extent allowed by applicable law) to enable the disclosing party to seek a protective order or otherwise prevent such disclosure. Ownership and Return of Confidential Information. The disclosing party’s Confidential Information is and shall remain the disclosing party’s property, and this Agreement does not grant or imply any license or other rights to the disclosing party’s Confidential Information except as expressly set forth in this Agreement. Within 5 business days after the disclosing party’s request, the receiving party will promptly either (at the disclosing party’s election) destroy or deliver to the disclosing party all Confidential Information furnished to the receiving party, and the receiving party agrees to provide a written officer’s certification of the receiving party’s compliance with the foregoing obligation.
Marketing: Customer represents warrants and agrees that it shall have the following duties and authority: (a) For the Term of the Agreement, Customer grants to Supplier the right to market Supplier’s retail energy services (“RS Power Services”) directly to residents and potential residents in the multifamily apartment communities and/or single family homes owned and/or managed by Customer (collectively, “Residents”), including but not limited to (i) the exclusive right to place and maintain advertising materials for the RS Power Services in the RentCafe Online Leasing process and Resident Portal, (ii) by electronic means such as text message (including text messages sent via automatic telephone dialing system), e-mail, or U.S. mail, and (iii) as the parties may otherwise mutually agree. Client represents and warrants to Supplier that its grant of the right to market herein shall not violate any other agreement, promise or undertaking that Client has with any third party. (b) Client represents and warrants that it has full power and authority to enter into and perform this Agreement, and that the execution and delivery of this Agreement has been duly authorized by the owner and/or landlord of the Properties.
Severability: The various provisions of this Contract are severable. Any provision or section of this Contract declared or rendered void, unlawful, or otherwise unenforceable shall not otherwise affect the residual, lawful obligations that arise under this Contract.
Counterparts: This Contract may be executed in one or more counterparts, and each executed counterpart shall be considered an original.
Entire Agreement: This Contract constitutes the entire understanding of the Customer and Supplier with respect to the subject matter hereof and may only be amended by a written instrument executed by both parties. Any attachment, schedule, or addendum executed pursuant to this Contract by the Parties after the date hereof shall become a part of this Contract as of the effective date of such attachment, schedule, or addendum. In the event of a conflict between the terms of the TOS and any attachment, schedule, or addendum, the terms of any Attachment shall govern. This Contract is effective only upon Customer’s execution and Supplier’s subsequent execution or performance of this Contract.