Exhibit 10.17
TRANSITION SERVICES
AGREEMENT
This TRANSITION SERVICES AGREEMENT
(“ Agreement ”), dated as of August 1,
2006, between Shell Energy Services Company, L.L.C. (“
Service Provider ”) and MxEnergy Inc., a
Delaware Corporation (“ Buyer ”) (each a
“ Party ” and collectively, the “
Parties ”).
WHEREAS, the Parties have entered
into a Asset Purchase Agreement dated May 12, 2006, whereby Service
Provider agreed to sell to Buyer its retail gas service contracts
and certain assets related thereto (the “ Purchase
Agreement ”).
WHEREAS, Buyer desires to secure
certain services from Service Provider and Service Provider is
willing, under the terms of this Agreement, to make available to
and permit Buyer to utilize the services of Service Provider in the
performance and handling of certain matters in return for
compensation paid by Buyer to Service Provider as hereinafter
provided;
NOW, THEREFORE, the Parties hereto
agree as follows:
1.
Definitions/Procedural
Conventions . Unless
otherwise expressly indicated, capitalized terms used and not
defined herein shall have the meanings set forth in the Purchase
Agreement, and all rules as to usage and procedural conventions set
forth in the Purchase Agreement shall govern this Agreement unless
otherwise provided herein.
2.
Scope of Services and Additional
Services . Service
Provider or its Affiliates shall furnish to Buyer the services
described in Exhibits A through F at the costs described in
Exhibits. A through F, which costs shall be paid by Buyer in
accordance with the payment terms described in Exhibit Z. The
services described in Exhibits A through F, as they may be amended
from time to time upon mutual agreement by the Parties, together
with any additional services added to this agreement pursuant to
Section 3(b), shall be referred to as the “
Services ” (each group of activities listed on
an individual Exhibit is a “ Service ”).
Unless otherwise agreed by the Parties the Services will only be
provided in connection with the operations related to the
Assets.
3.
Term of Agreement
.
(a)
The term of this Agreement with
respect to each Service (the “ Term ” for
each such Service) shall commence as of the Closing Date or, if
later, the date on which such Service is added and shall continue
in full force and effect with respect to each such Service for the
time periods set forth on Exhibits A through F, as applicable,
unless any such service is terminated earlier by Buyer upon 60
days’ prior written notice to Service Provider. This
Agreement shall terminate, except as to Sections 4, 6, 7, 10 and 12
when the Term for all Services has ended.
(b)
Any additional services requested by
Buyer that are not included within the services described in
Exhibits A through F shall, if mutually agreed upon by the Parties,
be negotiated and included in this Agreement by way of an amendment
to this Agreement, with such additional service being reflected on
a new Exhibit to this Agreement. Notwithstanding the foregoing, in
no event shall any Service or additional
service provided by Service Provider
hereunder be provided past the date which is six (6) months from
the date of the Closing unless agreed to by both Parties in
writing.
4.
Payment . In return for Service Provider’s
agreement to provide the Services, Buyer shall pay and otherwise
reimburse Service Provider the payment amount described for all
Services in the applicable Exhibits corresponding to each Service,
in each case, under the payment terms set forth in Exhibit Z. In
the event that Buyer terminates any Service as provided in Section
3 above, Buyer shall only be responsible for fees for such service
provided up to the effective time of the termination.
5.
CONFIDENTIAL INFORMATION. Except as
may be required to perform Services hereunder, Service Provider
shall, and shall cause its directors, officers, employees and
agents, to hold in confidence any proprietary or other confidential
information concerning the business of the Buyer
(“Confidential Information”) that comes into the
possession of Service Provider or any of its directors, officers,
employees or agents, for a period of one year following the date of
disclosure to Service Provider. During such period, the Service
Provider shall use reasonable efforts not to disclose the
Confidential Information to unaffiliated or unrelated third
parties, except with the prior permission of the Buyer, and Service
Provider shall only use such Confidential Information for the
purpose of fulfilling this Agreement and for no other purpose. The
foregoing general restrictions on disclosure of Confidential
Information shall not apply to disclosures of Confidential
Information that (i) was previously known to the Service Provider;
(ii) is obtained by the Service Provider on a nonconfidential basis
from a third party; provided that the third party, to the knowledge
of the Service Provider, is not or was not bound by a
confidentiality obligation with respect to such Confidential
Information; or (iii) is in or becomes part of the public domain
through no fault of the Service Provider. The Service Provider may
disclose Confidential Information to the extent, and only to the
extent, necessary to enforce this Agreement. If it appears that the
Service Provider may become legally compelled to disclose any
Confidential Information, the Service Provider promptly shall
consult with the Buyer as to the reasons for such compelled
disclosure, and shall afford the Buyer a reasonable opportunity to
obtain a protective order as to the Confidential Information, and
further shall use reasonable efforts to obtain reliable assurance
that the Confidential Information actually disclosed will be
treated confidentially. Except as any such legal demand shall have
been timely limited, quashed or extended, the Service Provider may
thereafter comply with such demand, but only to the extent required
by law. Where a protective order is obtained by the Buyer, nothing
in this Agreement shall be construed to authorize the Service
Provider to disclose the Buyer’s Confidential Information
beyond the scope of the protective order.
6.
Independent Contractor
Status . The Parties
acknowledge and agree that Service Provider is an independent
contractor in the performance of each and every part of this
Agreement and nothing herein shall be construed to be inconsistent
with this status. Service Provider shall have full authority to
select the means, methods and manner of performing the Services.
Without limiting Service Provider’s authority to select the
means, methods and manner of performing the Services, Buyer shall
be entitled to specify the nature of such Services and the results
to be achieved. No agent, employee or servant of Service Provider
shall be or shall be deemed to be the employee, agent or servant of
Buyer and nothing in this Agreement shall be construed to make
Buyer an employer, directly or indirectly, of Service
Provider’s employees
2
under any Applicable Law. None of
the benefits provided by Buyer to its employees, including
compensation
