AGREEMENT
FOR ELECTRONIC DATA INTERCHANGE
BETWEEN
ENERGY FUTURE HOLDINGS CORP.
AND
__________________________________
THIS AGREEMENT FOR ELECTRONIC DATA
INTERCHANGE (the "Agreement") is made as of _______________________,
200_____, by and between ____________________________________
("Contractor"), a ______________ corporation with its principal
offices at _______________________ and Energy Future Holdings Corp. on behalf
of itself and all of its subsidiaries (“Energy Future Holdings”), a Texas
corporation with its principal offices at 1601 Bryan, Dallas, Texas.
WHEREAS, Contractor and Energy
Future Holdings have entered into one or more agreements, whereby Contractor
provides goods or services to Energy Future Holdings; and
WHEREAS, Contractor and Energy
Future Holdings wish to establish procedures whereby the parties may
electronically transmit and receive data in agreed formats, in substitution of
conventional paper-based documents; and
WHEREAS, Contractor and Energy
Future Holdings wish to insure that such transactions are not legally invalid
or unenforceable as a result of the use of available electronic technologies
for the mutual benefit of the parties;
NOW, THEREFORE, the parties,
intending to be legally bound, agree as follows:
ARTICLE
1. PREREQUISITES
Section
1.1. Documents: Standards and
Guidelines. Each party may electronically
transmit to or receive from the other party any of the transaction sets, with
accompanying information relating to methods of verification or acceptance
(including, but not limited to, those transaction sets allowing for the
electronic transfer of funds), listed in Appendix "A" to this
Agreement, as well as transaction sets that the parties may, by written
agreement, hereafter add to Appendix "A" (collectively
"Documents"). All Documents shall be transmitted and processed in
accordance with those Standards and Guidelines specified in Appendix
"A".
Section
1.2. Third Party
Service Providers. Either
party may transmit Documents to the other party either directly or through a
third party service provider (hereinafter referred to as the
"Provider") designated by the transmitting party as identified in
Appendix "A". Should either party wish to designate an additional
Provider, through which it may subsequently transmit Documents to the other
party, it shall provide written notification to the other party of its intent to so use that Provider. The other party shall, within seven
(7) days of receiving such notification, advise the designating party, in
writing, of its approval or disapproval of the designated Provider, such
approval not to be unreasonably withheld.
Section
1.3. Depository
Institution. Each party shall effect
any electronic transfer of funds by and through the Depository Institution
designated by the other party in Appendix "A" (hereinafter referred
to as the "Depository Institution"). Either party may at any time,
upon seven (7) days written notice to the other party, change any information
provided in Appendix "A," relating to the Depository Institution.
Section
1.4. Systems
Operations. Each party is responsible for
ensuring that it can effectively and reliably transmit and receive Documents.
Moreover, each party retains this responsibility, notwithstanding that it may
use a Provider, or other person or entity, to provide services relating to the
Agreement.
Section
1.5. Security
Procedures. Each party shall properly use
security procedures, which are reasonably sufficient to protect all business
records and data, relating to Documents or other matters pertaining to this
Agreement, from improper access.
In connection with the electronic
transfer of funds, the parties shall comply with any security procedures which
may be established or otherwise required by designated Depository Institutions.
Such security procedures may include, without limitation, the use of algorithms
or other codes, identifying words or numbers, encryption, callback procedures,
or similar security devices. Neither party shall disclose to third parties the identity, nature, or content of any such
security devices, without the express, written consent of the other.
Section
1.6. Allocation of
Costs. Each party shall be responsible for
the payment of fees and other charges incurred or assessed by any Providers
designated by that party, or with which that party contracts. In connection
with the electronic transfer of funds, each party will pay the fees and other
charges incurred or assessed by its Depository Institution. Each party will pay
to transmit the Documents listed in Appendix "A" to the other party,
or if a Provider(s) is utilized, to the Provider of choice for such other
party. All other Document transmission and processing will be paid by the party
receiving the Documents.
ARTICLE
2. TRANSMISSION
Section
2.1. Proper Receipt. A Document shall not be deemed to have been properly
received, and shall give rise to no obligation on the part of the receiving
party, until that Document is accessible to the receiving party at that party's
Receipt Computer as designated in Appendix "A."
Section
2.2. Verification. If, consistent with Section 1.1, verification of a Document
is required, the receiving party shall, upon proper receipt of any Document,
promptly transmit a Functional Acknowledgment to the transmitting party. A
Functional Acknowledgment shall constitute conclusive evidence that a Document
has been properly received.
Section
2.3. Acceptance. If, consistent with Section 1.1, Acceptance of a Document
is required, any such Document, which has been properly received, shall not
give rise to any obligation, on the part of the receiving party, unless and
until the party initially transmitting such Document has properly received, in
return, an Acceptance Document (as provided for and specified in Section 1.1).
Section
2.4. Garbled Transmissions. If any transmitted Document is received in an
unintelligible or garbled form, the receiving party shall promptly notify the
transmitting party (if identifiable from the received Document) in a reasonable
manner. In the absence of such notification, the transmitting party's records,
of the contents of such Document, shall be presumed to reflect the actual
contents of that Document.
Section
2.5. Electronic Transfer of Funds .
Notwithstanding the requirements of Section 2.1, a payment made by either party,
by means of an electronic transfer of funds, shall be deemed received by the
other party when that other party's Depository Institution has credited such
party's account with the payment. The party receiving such payment shall have
no responsibility or liability, with regard to such payment, unless and until
that payment is so received.
ARTICLE
3. TRANSACTION TERMS
Section
3.1. Terms and
Conditions. The terms and conditions applicable
to the provision of goods or services, by Contractor to Energy Future Holdings,
are those contained in written agreement(s) between the parties. In the absence
of such written agreement(s), the terms and conditions applicable to the
provision of goods or services, by Contractor to Energy Future Holdings, shall
be those contained in Appendix "B". The terms and conditions, whether
contained in separate written agreement(s) or Appendix "B", are
deemed to be a part of any Document electronically transmitted or received
hereunder, except as such terms and conditions may be amended in writing by
agreement of the parties prior to the transmission of that Document.
In the event of any conflict between
such terms and conditions and other provisions of this Agreement, with regard
to the electronic transmission or receipt of data, this Agreement shall
control. In all other respects, and in the event of any such conflict, such
terms and conditions shall control.
Section
3.2. Legal Effect of
Documents. Any Document properly transmitted
pursuant to this Agreement shall be considered to be a "writing" or
"in writing."
In addition, any such Document, when
containing or to which there is affixed a Signature ("Signed
Documents"), shall be deemed for all purposes:
(a) to have
been "signed"; and
(b) to
constitute an "original";
when printed from electronic files or records established and
maintained in the normal course of business.
Notwithstanding the foregoing
provisions of this Section 3.2, each party may create and retain documents,
corresponding to or addressing, in any manner, either the transmission of
Documents or the data contained in such Documents. Moreover, each party may
disclose such Documents, as directed and to the extent properly required by any
court, governmental agency, or pursuant to an appropriate discovery request.
Section
3.4. Validity and
Enforcement. The parties agree not to contest
the validity or enforceability of the Signed Documents under the provisions of
any applicable law, with respect to the issues of whether such Signed Documents
are to be in writing, or have been signed by the party to be bound thereby.
Signed Documents, if introduced as evidence on paper in any judicial,
arbitration, mediation, or administrative proceedings, will be admissible as
between the parties to the same extent and under the same conditions as other
business records originated and maintained in documentary form. Neither party
shall contest the admissibility of copies of Signed Documents under either the
business records exception to the hearsay rule or the best evidence rule, on
the basis that the Signed Documents were not originated in documentary form.
ARTICLE
4. MISCELLANEOUS
Section
4.1. Severability. Any provision of this Agreement which is determined to be
invalid or unenforceable will be ineffective to the extent of such determination,
without invalidating the remaining provisions of this Agreement or otherwise
affecting the validity or enforceability of any provisions of those agreements
to which this Agreement applies.
Section
4.2. Entire Agreement. This Agreement constitutes the complete agreement of the
parties with respect to the use of Electronic Data Interchange, including
electronic transfer of funds, and supersedes all prior representations or
agreements, either oral or written, with respect to Electronic Data
Interchange. No oral modification or waiver of any of the provisions of this
Agreement shall be binding on either party. No obligation to engage in any
Electronic Data Interchange is to be implied from the execution or delivery of
this Agreement.
Section
4.3. Force Majeure. Application of the doctrine of force majeure, in connection
with the failure of either party to perform its obligations relating to any
Electronic Data Interchange (including any Document), shall be as provided for
in the written agreement or agreements, between the parties and relating to the
particular Document or Electronic Data Interchange in question, to which this
Agreement is applicable.
Section
4.4. Limitation of
Damages. Neither party shall be liable to
the other for any special, incidental, exemplary, consequential, or punitive
damages arising from or as a result of any delay, omission, or error in the
electronic transmission or receipt of any Document pursuant to this Agreement,
even if either party has been advised of the possibility of such damages.
|
ENERGY FUTURE HOLDINGS |
____________________________________ |
|
By:_______________________________ |
By:___________________________ |
|
Name:____________________________ |
Name:_________________________ |
|
Title:______________________________ |
Title:__________________________ |
APPENDIX
"A"
TO
ELECTRONIC DATA INTERCHANGE AGREEMENT
BETWEEN
ENERGY FUTURE HOLDINGS
AND
_________________________________________
STANDARDS
The standard applicable to this
Agreement shall be the American National Standards Institute (ANSI) Accredited
Standards Committee (ASC) X12 approved or draft standards transaction sets and
all ANSI ASC X12 referenced data dictionaries, segment directories and
transmission controls; provided, however, that only the Transaction Sets specified
below (in the "Documents" section of this Appendix), as identified in
that standard, shall be transmitted pursuant to this Agreement.
Upgrades to later releases of ANSI
ASC X12 Draft Standards or Standards will be at the concurrence of both parties.
DOCUMENTS
|
|
|
|
|
Verification
Document |
||
|
Transaction
Set No. |
Document Name or Description |
Version
Release |
Verification
Required (Yes
or No) |
Acceptance
Required (Yes
or No) |
Transaction
Set No. |
Document Name or Description |
|
810 |
Invoice |
004/010 |
Yes |
No |
997 |
Functional Ack. |
|
820 |
Remittance Advice |
004/010 |
Yes |
No |
997 |
Functional Ack. |
|
850 |
Purchase Order |
004/010 |
Yes |
No |
997 |
Functional Ack. |
|
997 |
Functional Acknowledgment |
004/010
|
No |
No |
|
|
|
860 |
P. O. Change |
004/010 |
Yes |
No |
997 |
Functional Ack. |
GUIDELINES
The guidelines applicable to this
Agreement shall be: (i) the Utility Industry Group
Implementation Guidelines, and (ii) with respect to the electronic transfer of
funds, the Rules of the National Automated Clearing House Association and the
Southwest Automated Clearing House Association. In the event of a conflict
between these guidelines (and any guidelines which may be hereafter designated
by the parties) and this Agreement, this Agreement shall control.
THIRD PARTY SERVICE PROVIDERS
|
|
Name |
Address |
Telephone No. |
|
Energy Future Holdings |
IBM E Commerce Cust.
Support |
|
1-877-326-6426 |
|
Contractor |
_______________ |
_______________ |
_______________ |
RECEIPT COMPUTER
|
|
Name |
Address |
Telephone No. |
|
TXU |
Main Frame Computer |
1601 Bryan St |
(214) 875-6773 |
|
Contractor |
_______________ |
_______________ |
_______________ |
DEPOSITORY INSTITUTIONS
Should either party make any payment
by means of an electronic transfer of funds, then it shall transfer such funds
to the Depository Institution specified below, as designated by the other
party:
|
TXU |
Bank Name: |
Bank One |
|
Business |
Address: |
One First National Plaza |
|
|
Account Name: |
Energy Future Holdings |
|
|
Account Number: |
|
|
|
Bank Routing Number: |
|
|
|
|
|
|
Contractor |
Bank Name: |
__________________ |
|
|
Address: |
_____________________ |
|
|
Account Name: |
_____________________ |
|
|
Account Number: |
_____________________ |
|
|
Bank Routing Number: |
_____________________ |
REMITTANCE INFORMATION (Required as indicated)
1. Remittance Information: The following Remittance
Information will be provided for each electronic transfer of funds payment:
• Total Amount of Funds Transfer
• Invoice
Number
• Invoice Date
• Invoice Amount
2. Method
of Communication: Remittance Information will be communicated:
• With the
sending party's Payment Orders
3. Remittance
Information Format: Remittance Information to be communicated will be structured
in the following format:
• EDI:
Transaction Set 820
• OTHER: ______________
SECURITY PROCEDURES
The parties shall implement those
security procedures and agreements necessary to establish and maintain
compliance with the terms of the Agreement. Agreements with Third Party Service
Providers shall establish and maintain security conditions consistent with
those required in the Agreement.
APPENDIX "B"
TERMS AND CONDITIONS
1.
Contractor's acceptance of this Agreement is limited to the terms and conditions
contained herein.
2. Energy
Future Holdings reserves the right to cancel all or any part of the undelivered
portion of any goods if Contractor does not meet the delivery requirements
specified or if Contractor breaches any of the terms and conditions of this
Agreement, including, but not limited to, the warranties of Contractor. Energy
Future Holdings' right to cancel this Agreement is in addition to any and all
other rights and remedies that Energy Future Holdings may have at law or in
equity.
3. Delay
in receiving invoices or errors or omissions on same will be considered just
cause for withholding payment without loss of cash discount privileges. The
cash discount period will date from the receipt of a correct invoice in Energy
Future Holdings' office, or receipt of goods or services, whichever occurs
last.
4. At the
discretion of Energy Future Holdings, any goods ordered pursuant to this
Agreement shall be subject to physical expediting, inspection and the right to
witness all tests by Energy Future Holdings or Energy Future Holdings'
representative prior to shipment. Such factory inspection shall not relieve the
Contractor from full responsibility for conforming to the requirements of this
Agreement nor prejudice any claim, right or privilege which Energy Future
Holdings may have as a result of Contractor's breach of any of the terms and
conditions of this Agreement.
5.
Contractor agrees to indemnify, hold harmless and, at Energy Future Holdings'
option, defend Energy Future Holdings, its affiliates and their respective
officers, directors, agents, and employees from any and all loss, expenses,
damage, liability, claims or demands for actual or alleged infringement of any
patent, trademark, copyright or trade secret arising from the purchase, use or
sale of goods or services furnished under this Agreement, except where such
infringement or alleged infringement arises by reason of a design originally
furnished to Contractor by Energy Future Holdings. Should the goods or services
or any part thereof or any use thereof be held to constitute infringement and
their use be enjoined, Contractor shall promptly and at its own expense either:
(1) procure for Energy Future Holdings the right to continue using the goods or
services, or (2) replace same with noninfringing
goods or services satisfactory to Energy Future Holdings, or (3) modify the
goods or services in a way satisfactory to Energy Future Holdings so they
become noninfringing.
6.
Contractor further agrees to indemnify, hold harmless and defend Energy Future
Holdings, its affiliates and their respective officers, agents, and employees
from any and all losses, expenses, damages, liability, claims or demands for
injury, death or property damage arising, directly or indirectly, in any way
out of the manufacture, delivery or installation of goods, the furnishing of
services, or other performance of Contractor under this Agreement, including
but not limited to any negligence or other fault of Energy Future Holdings, its
affiliates and their respective officers, agents, and employees.
7.
Contractor warrants that the goods or materials sold or provided to Energy
Future Holdings shall be merchantable, fit for use for the purposes intended,
free from defects in material or workmanship for a period of _____ from the date
of shipment, and otherwise provided in strict accordance with this Agreement.
Contractor
further warrants that any work or services sold or provided to Energy Future
Holdings shall be performed in a good and workmanlike manner, in accordance
with high professional standards, with a level of care, skill, knowledge, and
judgment required or reasonably expected of firms or persons performing
comparable work or services, and otherwise in strict accordance with this
Agreement.
No
limitation of these warranties shall be binding on Energy Future Holdings
unless signed by Energy Future Holdings.
Upon oral
or written notice from Energy Future Holdings that any of the goods provided or
services performed fail to conform to the above-specified warranties, Contractor
shall, at no additional costs to Energy Future Holdings, properly remedy such
failure, so that such goods or services conform to such warranties. Nothing
herein shall limit the rights and remedies that may be available to Energy
Future Holdings at law or in equity.
8. No
charges will be allowed for packaging, crating, or drayage unless specifically
authorized by Energy Future Holdings. Shipment is to be made by the most
economical transportation unless otherwise specified and Energy Future Holdings
will not be responsible for transportation charges unless goods are shipped
according to Energy Future Holdings' instructions.
9. CContractor expressly agrees that it will comply with Equal
Employment Opportunity - Executive Order No. 11246 and Executive Order No.
11375, Race, Color, Religion, Sex, or National Origin; Executive Order No.
11701, Veterans; Executive Order No. 11625, Minority Businesses; and Executive
Order No. 11758, Handicapped; where applicable.
10. If
this Agreement involves the sale of goods or services for an amount in excess
of $10,000.00, and Contractor will subcontract any portion of its performance
hereunder, Contractor will comply with the clause entitled "Utilization of
Small Business Concerns and Small Business Concerns Owned and Controlled by
Socially and Economically Disadvantaged Individuals" set forth in GSA Form
1685-A, Supplemental Provisions (Utility Service Contract) as amended,
implementing Section 211 of Public Law 95-507.
11. If
this Agreement involves the sale of goods or services for an amount in excess
of $500,000.00, and Contractor will subcontract any portion of its performance
hereunder, Contractor (except small business concerns) will adopt a plan in
accordance with the requirements of Public Law 95-507, 15 USC 637.
12.
Contractor expressly acknowledges and agrees that it will comply, whenever
applicable, to Section 114 of the Clean Air Act, as amended by Public Law
91-604 and Section 308 of the federal Water Pollution Control Act, as amended
by Public Law 92-500.
13.
Contractor shall comply with all laws and regulations applicable to the
production, manufacture, sale and delivery of the goods or services covered by
this Agreement.
14.
Contractor agrees to comply with the Immigration Reform and Control Act of
1986.
STATE OF TEXAS
DIRECT PAYMENT EXEMPTION
CERTIFICATE
LIMITED SALES, EXCISE AND USE TAX
ENERGY FUTURE HOLDINGS hereby claims
exemption from the payment of state, local and MTA sales and use taxes upon its
purchases of taxable materials, equipment or labor. The Permit Holder agrees
not to permit others (including its contractors and repairmen) to use Energy
Future Holdings' direct payment authorization to purchase material tax free.
This certificate is not valid for lump sum new construction projects to improve
real property and/or any nontaxable service. ENERGY FUTURE HOLDINGS agrees to
accrue and pay the tax to the State of Texas as required by statute. The
signature on this Agreement also authorizes the following exemption certificate
permit numbers and permit holders: 1-75-2967830-6 for TXU ELECTRIC DELIVERY
COMPANY, 1-75-0835281-6 for ENERGY FUTURE HOLDINGS COMPANY, 1-75-2967820-7 for
TXU GENERATION COMPANY LP, 1-75-1331562-6 for TXU FUEL COMPANY, 1-75-0399066-9
for TXU GAS COMPANY AND ITS DIVISIONS TXU LONE STAR PIPELINE& TXULONE STAR
GAS.