MASTER BILLING AGREEMENT
This MASTER BILLING AGREEMENT (the "Agreement") is made this ___ day of ___________,
2008 (“Effective Date”), by and between E Source Companies, LLC DBA EnergyWindow (the "Company"),
and __________________ ("Supplier"). The Company and Supplier are sometimes referred to herein
individually as a “Party” and collectively as the "Parties".
WHEREAS, Supplier is a licensed energy service provider in various states and provinces in the United
States and/or Canada;
WHEREAS, Supplier desires to use Company to submit bids for energy service (electricity and/or gas) to
prospective customers (“Customers,” or individually, a “Customer”); and
WHEREAS, Company operates an online system, located at www.energywindow.com (the “Site”), by
which prospective Customers request quotations, and suppliers submit bids, for energy service.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other good and
valuable consideration which is hereby expressly acknowledged, the Parties agree as follows:
1. Term of Agreement.
The term of this Agreement will commence as of the Effective Date and continue until terminated by either
Party as provided under this Agreement. Subject to either Party's right to terminate this Agreement for
breach as hereinafter provided, this Agreement may be terminated for any reason or no reason (a) upon
thirty (30) days prior written notice by either Party to the other Party or (b) upon the mutual written
agreement of the Parties. If either Party materially defaults in the performance of any of its obligations
under this Agreement, the non-defaulting Party may terminate this Agreement upon ten (10) days after
written notice of a monetary default, or upon twenty (20) days after written notice of a non-monetary
default, in either event if the defaulting Party fails to cure the default within such period. The written notice
shall specify the default and the action or actions required to cure the default.
The Supplier’s obligations to make payments to the Company shall survive termination of this Agreement, in
accordance with Section 6. In addition, the Parties’ rights and obligations under Sections 3 and 4 shall
survive termination of this Agreement.
2. Company Agreements.
Member Agreement (available at http://www.energywindow.com/member_agreement.shtml) and Privacy
Policy (available at http://www.energywindow.com/privacy.shtml) (collectively, the “Company Agreements”).
Notwithstanding anything contained herein to the contrary, all services provided by Company pursuant to
this Agreement shall be subject to the Company Agreements. Company shall have the right at any time to
change or modify the terms and conditions of the Company Agreements. Such changes, modifications,
additions or deletions shall be effective immediately upon notice thereof, which may be given by means
including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other
means by which Supplier obtains notice thereof. Any use of the Site or Company’s online system after such
notice shall be deemed to constitute acceptance by Supplier of such changes, modifications, additions or
deletions. To the extent of an inconsistency between this Agreement and the Company Agreements, the
terms of the Company Agreements shall control.
Each Party agrees to defend, indemnify and hold the other Party harmless from and against any and all
claims, liabilities, damages, settlements, and related expenses (including without limitation reasonable
attorneys' fees and costs) (collectively, "Damages"), incurred by the other Party arising from (i) a breach of
such Party’s obligations under this Agreement, and (ii) in the case of Supplier from and against any Damages
incurred by the Company arising from any claim or proceeding against the Company from any of Supplier’s
customers or end users, which claim or proceeding shall be Supplier’s sole responsibility to resolve and
Supplier shall solely bear the liability therefor.
4. Limitation of Liability.
Notwithstanding any other provision of this Agreement to the contrary, the entire liability of the Company
(including any and all Damages) for any and all claims of any kind arising from, out of or relating to this
Agreement and the transactions contemplated hereby shall not exceed the amount of transaction fees paid
by Supplier to the Company for the transaction giving rise to the Company’s liability and will be limited to
direct, actual damages only. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE)
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
5. Independent Parties; Company is Only a Venue.
The Parties are independent contractors. Nothing contained herein shall be construed as establishing a joint
venture, partnership or agency relationship between the Parties. Neither Party has control over the manner
or method in which the other Party performs its services, except as expressly provided herein. Each Party
will be solely responsible for payment of all compensation owed to its employees, as well as employment-
The Company provides an Internet venue where its members conduct auctions for the purchase and supply
of energy service. The actual transaction occurs between the parties purchasing and providing energy
services (i.e. Supplier and Customer). The Company is not a party to, or a broker for, such transaction and is
not an agent of either party to the transaction. The Company has no control over and is not responsible for
the quality, safety, legality or condition of the goods or services advertised, purchased, or supplied; the truth
or accuracy of the listings (or associated uploaded files); or the ability or capacity of any purchaser or
supplier to participate in any transaction. The Company cannot and does not control whether suppliers will
complete the sale of items on which they have bid or purchasers will complete the purchase of items that
they have posted. Supplier hereby agrees to release the Company (and its agents, employees, officers,
directors, owners and affiliates) from claims, demands and damages of every kind and nature, known and
unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected
with listings, bids, uncompleted or completed transactions, or items offered or actually sold through the Site.
6. Transaction Fees.
Supplier will pay the Company transaction fees in accordance with the payment terms set forth at
https://auction.energywindow.com/fees.shtml (the “Fee Schedule”) for each transaction for the sale of
energy service that Supplier enters into through the Company’s Site. The Fee Schedule may be changed
upon seven (7) days notice; however changes to the Fee Schedule will not apply retroactively to past or
ongoing auctions as of the time such notice is provided.
The Company will invoice Supplier by email upon successful completion of the bidding process. Supplier will
provide the Company with a copy of the agreement between Supplier and Customer (“Customer
Agreement”) (upon receipt of Customer’s permission and subject to the terms of the Company’s Privacy
Policy). Supplier will not be obligated to pay the Company any additional transaction fees as a result of any
renewal of a Customer Agreement unless such renewal results through the use of the Company’s Site or
If mutually agreed by the Company and Supplier, the Company may permit Supplier to pay the transaction
fees on a monthly or quarterly basis over a period extending greater than thirty (30) days following receipt
of the Company’s invoice (the “Extended Payment Option”). If the Company and Supplier agree to an
Extended Payment Option, the Parties will prepare a payment schedule similar to that attached hereto as
Schedule A (the “Payment Schedule”). The Parties will prepare a Payment Schedule for each transaction
involving an Extended Payment Option. Transaction fees shall be paid by Supplier to the Company upon
receipt of an invoice or, in the case of a transaction involving an Extended Payment Option, in accordance
with the applicable Payment Schedule; provided, that in the case of any Extended Payment Option, Supplier
acknowledges that such transaction fees shall be fully earned by the Company as of the date of the
successful bid agreement, and that the Payment Schedule for such Extended Payment Option represents
installment payments of the aggregate amount of such transaction fees.
7. Additional Assurances.
The Parties agree to execute such additional instruments and take such additional acts as may be reasonably
necessary to carry out the intent of this Agreement.
8. Consents, Approvals, and Discretion.
Except as expressly provided to the contrary in this Agreement, whenever any consent or approval is
required to be given by either Party under this Agreement, or either Party must or may exercise discretion,
the Parties agree that such consent or approval shall not be unreasonably withheld or delayed and such
discretion shall be reasonably exercised.
Any dispute as to the rights and duties of the Parties under this Agreement or to its construction, validity, or
enforcement shall be submitted to binding arbitration in Denver County, Colorado pursuant to the rules of
the American Arbitration Association. The decision of the arbitrators shall be enforceable in any court of
competent jurisdiction. The prevailing Party in such arbitration or any proceeding in respect thereof or
challenging such arbitration, shall be entitled to recover attorneys’ fees and court costs incurred in
connection therewith. Notwithstanding the foregoing, each Party shall have the right to seek and obtain
such temporary or preliminary injunctive relief from a court of competent jurisdiction to which it may be
entitled pending a final determination by arbitration of the dispute to which such relief relates.
10. Choice of Law and Venue
This Agreement shall be governed by and construed in accordance with Colorado law as applied to contracts
executed and performed entirely within such state by residents of such state. Jurisdiction and venue of any
action or suit arising out of or connected with this Agreement shall be solely and exclusively in the proper
state or federal court located in Denver, Colorado, and the Parties hereby submit themselves to the
jurisdiction of such court and waive any objection either Party may have to either jurisdiction or venue in
Except as otherwise provided herein or in any of the Company Agreements, any notice, demand, or
communication required, permitted, or desired to be given hereunder shall be in writing and shall be deemed
effectively given when personally delivered or four (4) days after having been mailed by prepaid, U.S. mail,
using the addresses provided on the signature page hereto. A Party may change its address by providing
notice of such change in accordance herewith.
12. Waiver; Severability.
Failure to provide notice of, or object to, any default under this Agreement will not operate or be construed
as a waiver of any future default. In the event any provision of this Agreement is held to be invalid, illegal,
or unenforceable for any reason and in any respect, such invalidity, illegality, or unenforceability thereof
shall not affect the remainder of this Agreement, which shall be in full force and effect and enforceable in
accordance with its terms.
13. Divisions and Headings.
The division of this Agreement into sections and the use of captions and headings in connection therewith is
solely for convenience and shall have no legal effect in construing the provisions of this Agreement.
14. Entire Agreement; Amendment.
This Agreement and the Company Agreements, including the schedules and exhibits hereto and thereto,
constitute the entire agreement and understanding between the Parties and supersede all previous
agreements and understandings regarding the subject matter hereof. This Agreement may not be modified
or amended except in writing signed by a duly authorized representative of each Party and no other act,
document, usage, or custom shall be deemed to amend or modify this Agreement.
Neither Party shall assign any of its rights or obligations under this Agreement, or any Payment Schedule,
without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, the Company may assign and be released from any of its rights and
obligations under this Agreement, or any Payment Schedule, without consent, provided that such
assignment is to a person or entity that succeeds to all or substantially all of the Company’s assets or
business or into which the Company is merged or otherwise combined or reorganized; provided the
succeeding entity agrees to be bound by this Agreement.
This Agreement may be executed in one or more original or faxed counterparts, or counterparts delivered
via .pdf technology, all of which when taken together shall constitute one and the same original, binding
The provisions of this Agreement shall survive termination or assignment to any successor in interest or
other permitted assignee.
18. Voluntary and Knowingly.
The Parties acknowledge and agree that all provisions of the Agreement, including the clause limiting the
liability of the Company, were mutually negotiated and agreed to and that but for the inclusion of the
limitation of liability clause in this Agreement, the transaction fees payable to the Company would otherwise
be greater and/or the Company would not have entered into this Agreement.
[Signature page follows on next page.]
IN WITNESS WHEREOF the Parties hereto have caused this Agreement to be executed on the day
and year first above written.
E Source Companies, LLC DBA EnergyWindow
Address: 1965 North 57th Court
Boulder, CO 80301-2515
Tel: (303) 345-9183
Fax: (303) 484-4279
This Payment Schedule, dated ______________ (“Effective Date”), is entered into pursuant to
and in accordance with that certain Master Billing Agreement dated ______________, by and between E
Source Companies, LLC DBA EnergyWindow (“Company”) and ____________________
(“Supplier”), and constitutes part of and is subject to all of the provisions, terms and conditions of such Master
Billing Agreement. Capitalized terms used herein but not defined will have the meanings ascribed to them in
the Master Billing Agreement.
The term of this Payment Schedule shall commence on the Effective Date and shall remain in effect
until all payments due to Supplier under the Customer Contract (as defined below) have been made. Supplier
shall make payments to Company on a monthly or quarterly basis as specified herein.
Contract Number and Date: ____________________ (“Customer Contract”)
Facilities Served: ____________________________
Account Number Contract Usage* Fee per Unit Total Fee* Payment Terms
Term (i.e. monthly;
* For the contract term.
IN WITNESS WHEREOF the Parties hereto have caused this Payment Schedule to be executed on the
day and year first above written.
E Source Companies, LLC DBA EnergyWindow Supplier: __________________________
By: __________________________ By: __________________________
Name: __________________________ Name: __________________________
Title: __________________________ Title: __________________________
Address: 1965 North 57th Court Address: ______________________________
Boulder, CO 80301-2515 __________________________
Tel: (303) 345-9183 Tel: ______________________________
Fax: (303) 484-4279 Fax: ______________________________