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;


 


NOW,
THEREFORE, the Parties hereto agree as follows:


 


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.


 


(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.


 


(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


 

















 


service
provided by Service Provider hereunder be provided past the date which is six
(6) months from the date of the Closing unless agreed to by both Parties in
writing.


 


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 compensation
insurance and unemployment insurance, shall be available to the employees,
agents or servants of Service Provider. Service Provider will be solely and
entirely responsible for its acts and the acts of Service Provider’s agents,
employees, servants, contractors and subcontractors during the performance of this
Agreement. Nothing in this Agreement or in the performance of this Agreement is
intended to create a partnership, joint venture or other joint business
arrangement between the Parties or any of their Affiliates, or any fiduciary
duty owed by one Party to the other Party or any of its Affiliates.


 


7.             Standards of Performance. Service Provider makes no express or implied
warranties or guarantees with respect to the Services except as expressly
provided herein. NO WARRANTY OF ADEQUACY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE SHALL APPLY TO THE SERVICES. Service Provider makes no
assurance that any of the Services provided hereunder will be error free, but,
in the case of errors, and as Buyer’s sole remedy for such errors, Service
Provider will endeavor to fix or otherwise remedy such errors in the same
manner that Service Provider does so for Service Provider’s internal users of
similar services.


 


8.             Indemnification and Limitation of Liability.


 


(a)           Buyer hereby releases and agrees to defend,
indemnify, and hold harmless Service Provider, its Affiliates, and their
respective officers, directors, shareholders, employees, representatives,
agents or trustees (collectively, “Indemnified
Parties”), from
and against any and all Losses (after giving effect to any recoveries by
Service Provider against Third Parties) caused by, arising out of, or in any
way incidental to or in connection with the performance of the Services or this
Agreement, whether arising before or after completion thereof, and in any manner
directly or indirectly caused, occasioned or contributed to, in whole or in
part, or claimed to be caused, occasioned or contributed to, in whole or in
part, by the following:


 


(i)            The sole negligence or fault, whether active
or passive, of Buyer, its contractors, subcontractors and/or vendors (or any of
their respective owners, directors, officers, employees or agents), or of any
Third Party;


 


(ii)           The sole negligence or fault, whether active
or passive, of any of the Indemnified Parties, their respective contractors,
subcontractors and/or vendors (or any of their respective owners, directors,
officers, employees or agents);


 


(iii)          The concurrent negligence or fault, whether
active or passive, of any combination of the Indemnified Parties, Buyer, their
respective contractors, subcontractors and/or vendors, or any Third Party (or
any of their respective owners,
directors, officers, employees or agents); or


 


(iv)          Where liability with or without fault is
imposed, or sought to be imposed, on the basis of any theory of strict
liability by operation of law or any


 


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violation or failure to
comply with any Applicable Law or any order or requirement of any Governmental
Entity;


 


provided, however, that
in no event shall Buyer be responsible for Losses caused by the gross
negligence or willful misconduct of an Indemnified Party.


 


(b)           IT IS THE INTENTION OF
THE PARTIES THAT THE EXCULPATION, DEFENSE AND INDEMNITY OBLIGATIONS OF Buyer
UNDER THIS SECTION 8 ARE WITHOUT REGARD TO WHETHER THE NEGLIGENCE, FAULT OR
STRICT LIABILITY OF AN INDEMNIFIED PARTY IS A CONTRIBUTORY FACTOR, AND SUCH
OBLIGATIONS ARE INTENDED TO PROTECT AND INDEMNIFY THE INDEMNIFIED PARTIES FROM
AND AGAINST ANY AND ALL LIABILITY ARISING FROM THE PERFORMANCE OF THIS
AGREEMENT, INCLUDING LIABILITY BASED ON OR RESULTING FROM THE SOLE OR
CONCURRENT NEGLIGENCE, FAULT OR STRICT LIABILITY OF THE INDEMNIFIED PARTIES.


 


(c)           NEITHER SERVICE
PROVIDER, ANY OTHER INDEMNIFIED PARTY, NOR BUYER SHALL HAVE ANY LIABILITY UNDER
THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL OR EQUITABLE
CLAIM OR REMEDY, FOR ANY INDIRECT, COMPENSATORY, SPECIAL OR CONSEQUENTIAL
DAMAGES OR LOSSES.


 


(d)           Expenses incurred by
any Indemnified Party in defense or settlement of any claim that may be subject
to indemnification shall be advanced by Buyer prior to the final disposition
thereof upon request of the Indemnified Party, subject to the right of
reimbursement to Buyer if it should be determined ultimately that such Indemnified
Party is not entitled to indemnification by a court of final jurisdiction.


 


9.             Access to
Facilities. Solely as required in connection with the performance of the
Services, Buyer shall permit Service Provider and its agents, servants and
employees reasonable ingress and egress to facilities owned or operated by
Buyer during normal business hours (or, in the instance of emergency services,
outside normal business hours, as required), subject only to the usual and
customary safety and security restrictions developed, observed and enforced in
the ordinary course at such facilities. All entry and exit to and from the
facilities shall be logged in accordance with procedures established by the
Buyer.


 


10.           Outside Consultants.
In the performance of the Services, Service Provider may, in its sole judgment
in the ordinary course of business consistent with past practice (whether
actual practice or such practice as would have been followed by Service
provider in any given situation), engage its Affiliates and other Third Parties
to perform discrete aspects of the Services including, without limitation,
Shell Real Estate and Shell IT and other services and/or subcontract the
provision of any of the Services covered by this Agreement, as it reasonably
deems necessary to provide the Services.


 


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11.              Notice. All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given and received
when sent by fax or delivered personally on the first business day after being
sent by nationally recognized overnight delivery service or on the third
business day after being sent by registered or certified U.S. mail (postage
prepaid, return receipt requested) to the Parties at the fax number or address
set forth on the signature pages to this Agreement.


 


12.              Compliance with Laws. Service Provider and its employees, and any
contractors, subcontractors and other agents engaged by Service Provider to
provide the Services, shall comply with all Applicable Laws in performing the
Services or any related work or other services. Any matter of compliance
relating to Buyer’s assets shall be at Buyer’s sole expense,


 


13.              General.


 


(a)           Amendment. This Agreement may be amended only by an instrument in writing
executed by authorized representatives of Buyer and Service Provider.


 


(b)           Severability. If any part of this Agreement is held by a court to be unenforceable
or invalid, the remaining provisions shall remain valid and enforceable.


 


(c)           Waivers. The Parties acknowledge that any delay, waiver or omission by either
Party to exercise any right or power arising from any breach or default by the
other Party with respect to any of the terms, provisions or covenants of this
Agreement shall not be construed to be a waiver by the non-defaulting Party of
any subsequent breach or default of the same or other terms, provisions or
covenants. No waiver of any right or power by either Party under this Agreement
shall be deemed effective unless in writing, signed by the waiving Party.


 


(d)           Counterparts. The Parties may execute this Agreement in counterparts, each of which
shall be deemed an original as against any Party who has signed it and together
shall constitute one and the same instrument.


 


(e)           Not for Benefit of Third Parties. Except as otherwise expressly provided
herein, this Agreement and each and every provision hereof is for the exclusive
benefit of Buyer and the Service Provider, and is not for the benefit of any
Third Party.


 


(f)            Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Texas and the obligations, rights and
remedies of the Parties hereunder shall be determined in accordance with the
laws of the State of Texas.


 


(g)           Force Majeure. Neither Party hereto shall be considered in
default in the performance of any obligations hereunder, except the obligations
to make payments, to the extent that the performance of such obligation is
prevented or delayed by any cause, existing or future, that is beyond the
reasonable control of such Party, including changes in applicable law and
action or delay by the other Party or its contractors.


 


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(h)           Assignment.
Except as set forth under Section 9 hereof,
the Parties shall not assign their respective rights or duties under this
Agreement, including by operation of law, without the prior written approval of
the other Party. This Agreement shall be binding upon and inure to the benefit
of the Parties hereto and all of their successors and permitted assigns. Any
assignment that does not comply with the provisions of this Section 12(h) shall
be null and void.


 


(i)            Dispute Resolution.
In the event of any controversy between the Parties arising out of this
Agreement, the Parties shall use good faith efforts, for a period of 30 days
following notice by a Party to the other Party that a controversy exists, to
resolve the controversy through settlement and compromise. Pending the
completion of any proceedings, payments not in dispute shall continue to be
made, and obligations not in dispute performed.


 


[Signature
Page Follows.]


 


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IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
written above.


 


	
   

  	
  SERVICE PROVIDER

  
	
   

  	
   

  
	
   

  	
  SHELL ENERGY SERVICES

  
	
   

  	
  COMPANY, L.L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven J. Murray

  	
   

  
	
   

  	
   

  	
  Steven J. Murray

  
	
   

  	
   

  	
  President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  Information for Notices:

  
	
   

  	
   

  
	
   

  	
  Shell Downstream

  
	
   

  	
  One Shell Plaza

  
	
   

  	
  910 Louisiana

  
	
   

  	
  Houston, Texas 77002

  
	
   

  	
  Attention: General Counsel, Downstream

  
	
   

  	
  Fax No.: 713.241.1444

  
	
   

  	
   

  
	
   

  	
  With a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Shell Oil Products

  
	
   

  	
  One Shell Plaza

  
	
   

  	
  910 Louisiana

  
	
   

  	
  Houston, Texas 77002

  
	
   

  	
  Attention:

  	
  Director, Post Closing Rights and

  Obligations

  
	
   

  	
  FaxNo.: 713.241.9800

  
							



 


[Signature
Page to Transition Services Agreement]


 


S-1

















 


	
   

  	
  BUYER

  
	
   

  	
   

  
	
   

  	
  MXENERGY
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Carole R. Artman-Hodge

  	
   

  
	
   

  	
   

  	
  Carole R. Artman-Hodge

  
	
   

  	
   

  	
  Executive Vice President
  and

  
	
   

  	
   

  	
  Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
  Information
  for Notices:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MxEnergy
  Inc.

  
	
   

  	
  595
  Summer Street, Suite 300

  
	
   

  	
  Stamford,
  Connecticut 06901

  
	
   

  	
  Attention:

  	
  Carole
  R. Artman-Hodge

  
	
   

  	
   

  	
  Executive
  Vice President and

  Chief Operating Officer

  
	
   

  	
  Fax
  No.: 203.975.9659

  
	
   

  	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Thomas
  W. Hartmann 

  General Counsel 

  MxEnergy Inc. 

  595 Summer Street, Suite 300 

  Stamford, Connecticut 06901 

  Fax No.: 203.975.9659

  
						



 


[Signature Page to Transition Services
Agreement]


 


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