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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;
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 .
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(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.
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(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
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
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under any Applicable Law. None of the benefits provided by Buyer
to its employees, including com
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