CUSTOMER LIST AGREEMENT

Transcription

1 CUSTOMER LIST AGREEMENT On this day of, 20, ( BGE ) and ( List Purchaser ), referred to collectively as the Parties, agree and state as follows: WHEREAS, List Purchaser desires to receive one or more lists of BGE s electric or gas distribution customers names, addresses, and telephone numbers, for the purposes of marketing electricity and/or gas to those customers at retail; and WHEREAS, in Order Nos , 76931, and 76932, the Maryland Public Service Commission ( PSC ) determined that it was permissible for a distribution utility to sell customer lists, so long as those lists were confined to name, address and telephone number, and further providing that all the customers in question were given an opportunity to block the release of their information; and WHEREAS, in Order No , the PSC approved a stipulation and settlement providing that, if BGE did release a customer list, then retail customers and BGE stockholders shall not at any time bear any of the costs associated with the development or provision of the list. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, BGE and List Purchaser hereby enter into the following Customer List Agreement ( Agreement ). Article One: List Preparation 1.1. BGE will prepare any customer lists set forth in Attachment A to this Agreement ( Initial Lists ), which List Purchaser requests and pays for in accordance with the procedures set forth in Section 2.1 below, on or after the time periods specified in Attachment A. a) Each Initial List will consist of all customers of the class(es) specified for that list in Attachment A who have not opted out of having their information provided ( Consenting Customers ). b) For each Consenting Customer, BGE will list the name, service address, and telephone number (if any) as it appears in BGE s records at the time the Initial List is prepared At the end of the first and second years after the preparation of each Initial List, upon List Purchaser making a request and tendering payment, BGE will prepare a revised version of the list ( Updated List ) that reflects all new customers, added to service after the date of preparation of the respective Initial List, who have not opted out of having their information provided. The Updated List will also reflect the addition and deletion of all customers who have notified BGE that they have changed their opt-out decision after the Initial Lists were prepared. (The Initial Lists and Updated Lists are referred to hereafter as the Lists.) 1.3. At the end of the third year after the Initial Lists are prepared, BGE will conduct a new opt-out mailing to its customers, and will prepare new full lists of Consenting Customers ( New Lists ), to the extent that List Purchaser enters into a new customer list agreement with BGE, and requests and pays for the New Lists. The New Lists will supercede the prior Lists for all purposes, and the Lists will no longer be made available. 1

2 1.4. BGE will use reasonable efforts to ensure that the information provided on all Lists matches the information in BGE s records. BGE will respond to all reasonable requests List Purchaser makes to have specific information in the Lists double-checked against BGE s records, and will correct all errors in the Lists that are discovered. However, BGE provides this information AS IS, and BGE makes no warranties as to the accuracy or completeness of the information contained in the Lists. Other than the obligation to make corrections as described above, BGE will have no liability to List Purchaser, of any kind, with respect to any information contained in the Lists List Purchaser understands and agrees that only Consenting Customers will be included on any List. BGE does not guarantee that any particular number or percentage of customers will consent and therefore be on any List, or indeed that any customers at all in any particular class will consent. Article Two: Payment for Lists 2.1 The price for each Initial List, derived from the cost of preparing that List, is set forth in Attachment A. If List Purchaser is the first entity to pay for a particular Initial List, List Purchaser must pay BGE in full, in advance, the amount listed in Attachment A in order to obtain a copy of each List that List Purchaser requests. If another entity has already paid BGE for a copy of the Initial List requested by List Purchaser, List Purchaser s required payment to BGE will be reduced in accordance with the procedure set forth in Section 2.3 below. 2.2 The price for each Updated List, derived from the cost of preparing that Updated List, is set forth in Attachment A. If List Purchaser is the first entity to pay for a particular Updated List, List Purchaser must pay BGE in full, in advance, in order to obtain a copy of each Updated List that List Purchaser requests. If another entity has already paid BGE for a copy of the Updated List requested by List Purchaser, List Purchaser s required payment to BGE will be reduced in accordance with the procedure set forth in Section 2.3 below. List Purchaser can only obtain an Updated List if List Purchaser has paid for the corresponding Initial List. 2.3 If more than one entity requests copies of a particular Initial List or Updated List from BGE, the charge to each requesting entity will be divided by the number of requests. An entity that is the second or subsequent requester of a List will be required to make a reduced initial payment, representing the Attachment A price divided by the number of requesters. An entity that has already paid for a List ( Prior Payer ) when another entity ( Subsequent Payer ) requests that same list will receive a refund from BGE equal to the amount received by BGE from the Subsequent Payer divided by the total number of Prior Payers for that List. 2.4 To the extent that the costs of preparing a particular List for List Purchaser have been reduced by the prior preparation of another List for List Purchaser or another entity that has requested customer lists, the price charged to List Purchaser in accordance with Sections 2.1, 2.2, and/or 2.3 will be reduced. 2.5 The prices for New Lists will be determined at the time that List Purchaser enters into a new customer list agreement that covers such lists. 2

3 Article Three: Request and Use Procedures 3.1 List Purchaser will only receive those Lists that it specifically requests, in writing, from BGE. Requests for Lists of electric customers are to be sent by to Requests for Lists of gas customers are to be sent by to List Purchaser s request for a List only becomes effective when BGE has received payment in full from the List Purchaser for the requested List. BGE will begin compiling a requested List, to the extent that the List has not already been compiled, once BGE has received full payment from List Purchaser. 3.2 By entering into this Agreement, List Purchaser warrants that it is licensed by the PSC as a retail supplier, marketer, aggregator, and/or broker with respect to the offering of gas and/or electric supply to retail customers in Maryland. List Purchaser may only use the Lists while it is so licensed by the PSC, and must immediately destroy all copies of all Lists in its possession or control if List Purchaser ceases to be so licensed. 3.3 Each Initial List and Updated List is valid only for twelve (12) months after their date of preparation. The expiration date of each List will be noted on the List. Immediately upon the expiration date noted, List Purchaser will cease to use the expired List, and will destroy all copies of the List in its possession or control. 3.4 List Purchaser warrants that it will keep all Lists, and all information contained in the Lists, strictly confidential, and will not share that information with any third party under any circumstances, except to agents of List Purchaser who provide marketing services to List Purchaser with respect to the Lists ( Marketing Agents ). List Purchaser expressly agrees to be responsible for compliance with this Agreement by its Marketing Agents, including the nondisclosure provisions of the Agreement. List Purchaser further warrants that it and its Marketing Agents will use Lists solely for the purposes of marketing gas and/or electricity from List Purchaser to retail customers in Maryland, and that internal circulation of the Lists will be restricted to the minimum number of persons necessary to accomplish that sole allowed purpose. BGE expressly reserves the right to report to the PSC any information received by BGE suggesting that List Purchaser and/or its Marketing Agents have violated the provisions of Article 3 of this Agreement, or have otherwise misused the Lists. 3.5 List Purchaser agrees to indemnify BGE and hold BGE harmless against all claims from third parties relating to or arising from List Purchaser s and/or its Marketing Agents possession or use of any List or any of the information contained in any List ( Claims ). List Purchaser s indemnity obligation will include any costs of any nature whatsoever that BGE incurs as a result of a claim, including but not limited to judgments, settlements, penalties, and attorney s fees. 3.6 List Purchaser s obligations under this Article Three are ongoing, and will survive for three (3) years after the expiration or termination of this Agreement. List Purchaser acknowledges and agrees that money damages for any breach of its obligations under Sections 3.2, 3.3 and 3.4 of this Agreement may not be a sufficient remedy, and in addition to allowing BGE to pursue all other remedies,, List Purchaser expressly waives the right to argue that BGE may not seek specific performance of such obligations. 3

4 Article Four: Expiration and Termination 4.1 This Agreement expires three (3) years after the preparation of the first Initial List by BGE. 4.2 Either Party may terminate this Agreement upon material breach of any of its terms by the other Party, provided that the terminating Party gives notice of termination to the breaching Party in accordance with Section 5.8 below and the breaching Party fails to cure the breach within five (5) business days of receipt of the notice. Article Five: Miscellaneous 5.1 The Agreement (including Attachment A) constitutes the entire agreement between the Parties, and supercedes all prior agreement and understandings, whether written or oral, between the Parties with respect to the subject matter hereof. 5.2 This Agreement and all the provisions hereof are binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns. This Agreement shall not impart any rights enforceable by any third party other than an assignee permitted under Section 5.4 below. 5.3 This Agreement shall not be amended, modified, discharged or supplemented, nor any provision hereof waived, unless mutually agreed, in writing, by the Parties. Except as otherwise provided in this Agreement, no delay or omission to exercise any right, power or remedy accruing to the respective Parties hereto shall impair any such right, power, or remedy. No delay or waiver with respect to any breach or default of this Agreement shall be construed as a waiver of any other or similar breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement must be in writing and shall be effective only to the extent specifically set forth in the writing. 5.4 Neither Party may assign this Agreement or any of its rights thereunder to any other entity, unless: (i) the assignee is a successor to all or substantially all of the assets of the assigning Party by way of merger, consolidation, sale, or otherwise; (ii) such assignee expressly assumes and becomes liable for all of the assigning Party s duties and obligations, as evidenced by a writing setting forth such assumption, which writing is provided to the non-assigning Party in accordance with Section 5.8 below prior to or contemporaneous with the assignment; and (iii), in the case of List Purchaser, if the assignee is licensed by the PSC, in the same manner the assigning Party was. 5.5 EXCEPT AS SET FORTH HEREIN, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL IMPLIED WARRANTIES ARE DISCLAIMED. EXCEPT AS PROVIDED IN SECTIONS 1.4, 3.5, 3.6, AND 4.2 ABOVE, LIABILITY FOR ANY BREACH OF ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IN NO EVENT SHALL DAMAGES AGAINST BGE EXCEED THE FEE PAID TO BGE BY LIST PURCHASER WITH RESPECT TO THE SPECIFIC LIST GIVING RISE TO THE CLAIM IN QUESTION. UNLESS EXPRESSLY HEREIN PROVIDED, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT 4

5 DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENTION OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. 5.6 THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES THEREUNDER SHALL BE GOVERNED BY AND CONSTITUTED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. 5.7 Any action, claim, lawsuit or dispute arising in connection with this Agreement that a Party chooses to submit to a court ( Litigated Disputes ) shall only be brought before the state or federal courts of Maryland ( Maryland Courts ). BGE and List Purchaser irrevocably consent to the jurisdiction of the Maryland Courts with respect to all Litigated Disputes. BGE and List Purchaser further agree that service of process for purposes of initiating a Litigated Dispute will be proper if sent in accordance with the notice provisions of Section 5.8 below. 5.8 Except as otherwise provided herein, all notices, requests, statements, payments or other communications with respect to any matter relating to this Agreement shall be made to the Parties at the addresses specified below. a) If to BGE with respect to Lists of electric customers : Ruth C. Kiselewich Director Special Projects & Supplier Services 7225 Windsor Boulevard Baltimore, Maryland Fax: (410) with a copy to: Daniel P. Gahagan Legal Department, 20 th Floor 39 West Lexington Street Baltimore, MD Fax: (410) b) If to BGE with respect to Lists of gas customers : Phillip R. Precht Director, Gas Choice Programs Spring Gardens 1699 Leadenhall Street Baltimore, MD Fax: (410)

6 with a copy to: Daniel P. Gahagan Legal Department, 20 th Floor 39 West Lexington Street Baltimore, MD Fax: (410) c) If to BGE with respect to all other matters relating to this Agreement, then to all the addresses noted in (a) and (b) above. d) If to List Purchaser: By: Name: Title: (List Purchaser) By: Name: Title: 6

7 ATTACHMENT A CUSTOMER LIST CHARGES (Charges reflect a single supplier request for a single customer list) As of 4/1/03 All Schedule P Electric Customers $4,000 - Approximately 410 accounts - List generated through BGE manual process - 45 day lead time for completion of list All Schedule P and Schedule GL/GLP (with Peak Load Contributions > 600 kw) Electric Customers $6,000 - Approximately 640 accounts - List generated through BGE manual process - 45 day lead time for completion of list All Schedule GL/GLP/P Electric Customers $60,000 - Approximately 9,000 accounts All Non-Residential Electric Customers $260,000 - Approximately 114,000 accounts All Large Gas Customers w/annual Usage > 90,000 Therms $4,000 - Approximately 350 accounts - List generated through BGE manual process - 45 day lead time for completion of list All Non-Residential Gas Customers $126,000 - Approximately 42,000 accounts All Residential Gas Customers $814,000 - Approximately 570,000 accounts 7