Smart Meter Program Agreement
We, The Smart Meter Member, hereby retain Smart Meter Program to perform a detailed audit and a complete regulatory analysis of the factors and procedures used by our electric utility supplier to render billings for all of our existing facilities and any acquired during this agreement. Smart Meter Program will seek refunds or reductions in our electric utility costs. Smart Meter Program's audit, conducted under the following terms and conditions, will cover: All Electric Utility Bills Uploaded.
I. UNDERSTANDING:
We direct Smart Meter Program to provide us with the expertise and guidance of their regulatory analysts and support of their specialized intellectual property and proprietary smart meter technology for a minimum of forty eight (48) months from this date for proper development and completion of a full term integrated audit of our electric utility expenditures and billing.
a. We hereby appoint Smart Meter Program as our exclusive agent with full and irrevocable authorization for the term of this agreement to work on our behalf, directly with our electric utility supplier, advising us of all findings, recommendations and negotiations.
b. We will provide Smart Meter Program secured access to our electric utility company smart meter here https://utilityapi.com/authorize/smart_meter_program for the initial analysis which will include, if indicated, a search as far back as refunds may be recoverable.
c. We will provide Smart Meter Program copies of our electric utility bills monthly, as well as any other billing data, or utility related information or communications Smart Meter Program deems essential, for the term of this agreement so Smart Meter Program may continue this analysis, prevent further overcharges from occurring, and monitor utility compliance with Smart Meter Program's guidance.
II. IMPLEMENTATION OF RECOMMENDATIONS:
a. No negotiations are currently under way between us and any of our electric utility suppliers. If any utility company refuses to cooperate with Smart Meter Program, we will conduct necessary negotiations in accordance with Smart Meter Program's guidance, and will keep Smart Meter Program informed of all written and verbal communications. If we have any communication directly with our utility company, we will notify Smart Meter Program in writing of our communication.
b. We will implement any required utility agreements attached hereto, including all no-cost billing or contract changes recommended by Smart Meter Program within ten (10) days of notification, and will also keep Smart Meter Program fully informed of the progress.
c. Recommendations, however, requiring either capital expenditure out-of-pocket expenses in excess of $10,000.00, or operational changes will be implemented only at our option.
III. TERMINATION:
a. Provided we are not in default hereunder, we can terminate this agreement at any time after twenty-four (24) months from this date by notifying Smart Meter Program in writing, and by paying Smart Meter Program any unpaid, (1) – shared savings realized and, (2) - shared savings expected to accrue during the remainder of this agreement.
b. If our operation ceases, and all monies due Smart Meter Program have been paid, this agreement may be terminated. If, however, an individual facility ceases operation, the agreement will remain in effect but payment for any savings share for that facility will end with its closing.
IV. RENEWAL:
a. Unless we notify Smart Meter Program in writing to the contrary within sixty (60) days of any ending date of this agreement, its terms will automatically extend successive twelve (12) month periods.
b. In any event, if a recommendation submitted by Smart Meter Program is implemented and results in ongoing savings for any specified electric utility service, the term for said service, smart meter or facility will be automatically extended to allow for the period of shared savings outlined in paragraph [VI e] to be completed. We will continue to send Smart Meter Program billing information for the services involved and pay Smart Meter Program as outlined in said paragraph.
V. DEFAULT:
Should we default in our obligations as specified herein, payment equal to 3% of our annual electric utility costs shall become due and payable immediately upon demand by Smart Meter Program. In addition, if savings have already been identified, recommended, or implemented when default occurs, the entire balance of shared savings due Smart Meter Program, as outlined in paragraph [VI e], will become due and payable. We will have 10 days to cure said default upon written notice by Smart Meter Program.
VI. PAYMENT TERMS:
Verified reduction in electric utility costs shall be defined as the difference, as determined by Smart Meter Program, between actual costs and the costs that would have occurred if billing terms existing prior to the execution of this agreement remained in effect.
a. We understand and agree that all membership fees due to the Smart Meter Program are to be rendered with each monthly utility bill and paid immediately upon receipt. Interest at the rate of 1.5% per month on the unpaid balance will be applied to all membership fees due after 30 days.
b. Savings resulting from reduced consumption because of weather or operational variations will not be considered in Smart Meter Program membership fees.
c. This agreement shall be governed by and construed in accordance with the laws of Illinois. We agree to pay Smart Meter Program's reasonable attorneys' fees in the event that amounts owed under this agreement are collected by or through attorneys.
In return for the services described above, we will pay Smart Meter Program:
d. A retainer fee to be determined upon acceptance below, which Smart Meter Program guarantees, will be completely recovered by us through gross refunds, credits or utility-related cost reductions before they share as outlined in Paragraph [VI e]. Upon fulfillment of this agreement by both parties, if any portion of the above retainer is not recoverable through the application of Smart Meter Program's utility-related recommendations, we may request a refund for that portion.
e. A membership fee based on each new monthly utility bill showing relative computations, (1) - an amount equal to fifty percent of each collected or realized refund or credit and, (2) - an amount equal to thirty-five percent of each verifiable utility bill reduction for that bill period limited to forty-eight (48) months from the date each reduction begins.
VII. We mutually agree that:
If we fulfill this agreement and there are no qualified refunds or verifiable utility bill reductions, we will owe Smart Meter Program nothing.
These terms and conditions constitute the entire agreement, and can be changed only by mutual written consent.
MUTUAL NON-DISCLOSURE AGREEMENT
This MUTUAL NON-DISCLOSURE governs the sharing of information by and between, Smart Meter Program and The Smart Meter Member as of Today (the "Effective Date").
Definition of Confidential Information. As used herein, "Confidential Information" shall mean any and all technical and non-technical information related to the regulation of rates and tariffs, measurement, metering, and/or monthly utility billing associated with the cost of utility usage or consumption through any Regulated Utility Company or Retail Electric Service Provider from Smart Meter Program to The Smart Meter Member, including but not limited to any:
- Patent(s) and patent applications,
- Trade secret,
- Copyrighted information, and
- Proprietary information - ideas, techniques, sketches, drawings, work of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties.
Identification of Confidential Information. If the Confidential Information is embodied in tangible material (including without limitation, software, hardware, drawings, graphs, charts, disks, tapes, prototypes and samples), it shall be labeled as "Confidential" or bear a similar legend. If the Confidential Information is disclosed orally or visually, it shall be identified as such at the time of disclosure.
Handling of Confidential Information. Each party agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party Confidential Information of the other, except as approved in writing by the other party to this Agreement, and will use the Confidential Information for no purpose other than validation and verification of the measurement, metering, and/or monthly utility billing associated with the cost of utility usage or consumption through any Regulated Utility Company or Retail Electric Service Provider from Smart Meter Program with The Smart Meter Member, or the other party to this Agreement. Each party shall only permit access to Confidential Information of the other party to those of its employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.
Terms and Termination. This Agreement shall terminate four (4) year(s) after the Effective Date. The Recipient's obligations under this Agreement shall survive termination of the Agreement between the parties and shall be binding upon the Recipient's heirs, successors and assigns indefinitely. Upon termination or expiration of the Agreement, or upon written request of the other party, each party shall promptly return to the other all documents and other tangible materials representing the other's Confidential Information and all copies thereof.
Warranties. Each party represents and warrants to the other party that (i) it has the requisite corporate authority to enter into and perform this Agreement, (ii) this Agreement constitutes its legally binding obligation, enforceable in accordance with its terms, and (iii) its execution and performance under this Agreement, including its disclosure of Confidential Information to the Recipient, will not result in a breach of any obligation to any third party or infringe or otherwise violate any third party's rights.
No Export. Neither party shall export, directly or indirectly, any technical data acquired from the other pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.
No Reverse Engineering. Each of the parties agrees that the software programs of the other party contain valuable confidential information and each party agrees it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information of the other party without the prior written consent of the other party.
No Grant of Rights. The parties recognize and agree that nothing contained in this Agreement shall be construed as granting any property rights, by license or otherwise, to any Confidential Information of the other party disclosed pursuant to this Agreement, or to any invention or any patent, copyright, trademark, or other intellectual property right that has issued or that may issue, based on such Confidential Information. Neither party shall make, have made, use or sell for any purpose any product or other item using, incorporating or derived from any Confidential Information of the other party.
Equitable Remedies. Recipient acknowledges that Recipient's breach of this Agreement may cause irreparable harm to Discloser for which Discloser is entitled to seek injunctive or other equitable relief as well as monetary damages.
Miscellaneous. Neither party shall transfer or assign this Agreement to any other person or entity, whether by operation of law or otherwise, without the prior written consent of the other. Any such attempted assignment shall be void and of no effect. This Agreement shall be governed by, enforced under, and construed and interpreted in accordance with, the laws of The State of Illinois without reference to conflict of laws principles. Each party agrees consent to venue and personal jurisdiction in Sangamon County, City of Springfield, and the State of Illinois. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such un-enforceable or invalid provision within the limits of applicable law. Neither party will assign or transfer any rights or obligations under this Agreement, including by operation of law, without the prior written consent of the other party. This Agreement is the complete and exclusive agreement regarding the disclosure of Confidential Information between the parties, and replaces any prior oral or written communications between the parties regarding Confidential Information.