This Energy Retailer and Payments Processing Program Agreement is a legal agreement between you and EnPowered Inc. (“EnPowered”) respecting electricity supplied through EnPowered acting as an electricity retailer, and/or the payments processing and consolidation services offered by EnPowered, and consists of three parts:
PART A: Electricity Retailer Terms – these terms relate to the supply of electricity to you through EnPowered as an electricity retailer under its Ontario Energy Board electricity retailer licence #ER-2015-0138
PART B: Payments Processing Terms – these terms relate to the service offered by EnPowered to collect charges that you owe to certain vendors of energy related products or services and remit them to the vendors or an applicable financing company, either by: (a) adding such charges to your electricity bill (so that you don’t need to deal with a separate invoice from those vendors or financing companies), but rather have all the charges consolidated on your electricity bill, or (b) utilizing pre-authorized debit to withdraw such charges from your bank account
PART C: General Terms and Conditions – these are terms that generally relate to your relationship with EnPowered
The term “Agreement” comprises the above-described three parts, and means the entirety of this Energy Retailer and Payments Processing Program Agreement. In the event that you are not utilizing all services hereunder, only the portions of this Agreement applicable to your services usage will apply. For instance, if EnPowered is not your electricity retailer, but you are still utilizing payments processing services, Part A will not apply to you, but Part B and Part C will continue to govern your relationship with EnPowered.
In this Agreement, “You” or “you” means (a) you as an individual, or (b) your company, organization, or other entity, if you are agreeing to this Agreement on behalf of such company, organization, or other entity and are authorized to bind and act for such company, organization, or other entity.
The term of this Agreement begins on the date that you accept this Agreement, and ends upon the date that it is terminated in accordance with this Agreement (see Part C: General Terms and Conditions). Note that you can terminate this Agreement at any time, for any or no reason, by notifying EnPowered in writing.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON THE APPROPRIATE ACCEPTANCE LINK OR BUTTON PROVIDED TO YOU, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
PART A – Electricity Retailer Terms
- Electricity Retailer Arrangement and Supply
1.1 Appointment of Retailer. During the term of this Agreement, you acknowledge that EnPowered will act as your energy retailer pursuant to the Ontario Energy Board regulations, and that this agreement is not with your utility, the Ontario Energy Board or the government. You hereby appoint EnPowered as your exclusive electricity supplier, retailer and agent for managing your electricity supply at the premises and service address provided by you to EnPowered (“Service Address”). As an energy retailer, EnPowered acts as your intermediary with the utility for your electricity supply, and accordingly, you fully authorize EnPowered to act on your behalf in all matters under the electricity supply arrangements we make on your behalf or any related transaction, including without limitation, all accounting, the giving of all correspondence, notices, invoices, and payments required or permitted under the electricity supply arrangements EnPowered makes on your behalf. Any acts or obligations of EnPowered under the electricity supply arrangements made on your behalf shall be deemed as having been duly authorized by you and the same shall be binding on you as against EnPowered.
1.2. Electricity Supply and Price. EnPowered will arrange for the supply of electricity to your Service Address during the term of this Agreement at the Hourly Ontario Energy Price (HOEP), which is the same rate you are currently paying for your electricity supply. HOEP is set by the Independent Electricity System Operator, the provincial electricity market operator. The volume of energy consumed will continue to be based on your electric utility and their meters. You understand and acknowledge that this price relates only to the supply of electricity and does not include the price for regulated transmission, distribution and other charges that may be charged by your electricity utility.
1.3. Electricity Utility Provider. Your electricity utility remains unchanged – all electricity services will continue to be provided from your current utility and all questions and issues related to your electricity supply service should be directed to your utility; you acknowledge that EnPowered has no control over the actual service of providing electricity to you, and that such service is solely controlled by your utility.
1.4. Electricity Bill. Your bill will continue to be provided by your electric utility. The electricity purchased from EnPowered under this Agreement will simply be listed as a charge on your regular electricity bills, explicitly set out as a line item on your electricity bill for the applicable billing period. Your payment of your utility electricity bill constitutes payment to EnPowered for the electricity supplied under this Agreement.
2. Your Obligations Relating to Electricity Services
2.1. Commencement of Services. To commence EnPowered’s supply of electricity to you, and any other services under this Agreement, you must first pay off your electricity bill in full. EnPowered cannot provide services hereunder until your electricity bill reflects a balance of zero.
2.2. Representations and Warranties. In relation to your purchase of electricity hereunder, you represent and warrant that: a) You are the account holder or agent for the account holder for the Service Address to which the electricity is being supplied, and that you have all right, power and authority to enter into this Agreement respecting the purchase of electricity for the Service Address; b) You are not considered to be a low volume consumer pursuant to the Ontario Energy Board regulations; c) You will purchase the electricity in accordance with this Agreement and any terms and conditions of an invoice rendered to you by your local electricity utility, and will pay your electricity bills in full and on time; d) You will comply with all applicable laws, ordinances, codes and regulations, as well as applicable parameters and instructions provided by EnPowered or your local electricity utility, in your use of the electricity purchased hereunder; e) You agree to provide financial information to EnPowered or such other party as we shall advise to support credit approval, if requested by EnPowered; and f) You understand that this Agreement is an “Eligible Financial Contract” for purposes of the Bankruptcy and Insolvency Act (Canada), the Winding Up and Restructuring Act (Canada) and the Companies’ Creditors Arrangement Act (Canada) and the bankruptcy, insolvency, creditor protection or similar laws of any other jurisdiction (regardless of the jurisdiction of such application or competence of such law).
3. Assignment of Electricity Supply Obligations
3.1. EnPowered may assign, without your permission, any or all of the electricity supply obligations hereunder to another electricity retailer licensed by the Ontario Energy Board.
4.1. Nothing in this Agreement negates or varies your right to cancel this Agreement under and in accordance with the Energy Consumer Protection Act, 2010. If you require assistance that EnPowered cannot provide, you can contact the Ontario Energy Board Customer Service Centre at 416-314-2455 or toll free at 1-877-632-2727.
5. Effect of Termination
5.1. Upon any termination of this Agreement, EnPowered will immediately transition you back to your default electricity supply from your utility. Your utility may take several weeks to complete the transition; EnPowered will have no responsibility for electricity supply or any other services under this Agreement during such transition period.
PART B – Payments Processing Terms
- Payments Processing Services
1.1. Services. For your convenience, EnPowered offers the service of collecting from you certain charges relating to your purchase of energy-related products and services, and remitting those charges to the company that you owe them to (generally the vendor or their finance partner), either through the On-Bill Services, described in Section 2 below, or through the PAD Collection Service, described in Section 3 below (the “Services”). The Services are only available in relation to vendors or their finance partners that have partnered with EnPowered to permit this consolidation (“Partners”), and for On-Bill Services, only where EnPowered is your energy retailer or where your energy retailer has partnered with EnPowered to allow for such services (“Energy Retailer”).
1.3. Partner Products and Services. The amount that EnPowered adds to your bill in the On-Bill Services or withdraws from your account in the PAD Collection Service is the amount that has been provided to EnPowered by the Partners, and is not determined by EnPowered. These amounts are Partner’s charges for its products and services, along with any applicable financing or other fees, that you have agreed to with the Partner. Such amounts may be billed as a series of periodic payments or a lump sum, depending on your agreement with the Partner. All questions related to the Partners’ products and services, including billing amounts and frequency, service and maintenance of products, or issues with the products and services, should be directed to the Partners.
2. On-Bill Consolidation Services
2.1. On-Bill Services. If you obtain electricity supply provided to you under this Agreement or through an Energy Retailer that has partnered with EnPowered, EnPowered offers the ability for certain charges relating to your purchase of energy-related products and services to be added onto your electricity bill, so that you don’t need to deal with a separate invoice relating to those products and services, but rather have all the charges conveniently consolidated on your electricity bill – and upon your payment of the bill, EnPowered remits the appropriate amounts to the applicable Partners (the “On-Bill Services”).
2.2. Acknowledgement and Consent. You acknowledge that the On-Bill Services are a part of the electricity supply arrangement made for you by EnPowered under this Agreement or by your Energy Retailer under your Energy Retailer’s agreement with you, and are a feature of EnPowered’s or the Energy Retailer’s competitive electricity service offered as an electricity retailer. You hereby specifically consent to the amounts payable to Partners through the On-Bill Services to be added as part of the electricity supply charge appearing on your bill, such that the amount appearing on your bill will be an aggregate of the applicable charges for the Partner’s products and services that you’ve agreed to, along with electricity costs for the energy that you used in the relevant billing period at the Hourly Ontario Energy Price (if EnPowered is your energy retailer), or otherwise at the price that you have agreed upon with your Energy Retailer.
2.3. Transparency. All charges payable through the On-Bill Services will be clearly explained to you by e-mail, and will not exceed the amounts described in the e-mail. Where applicable, details of the charges may also be accessible through an EnPowered URL appearing on the bill. Where EnPowered is your energy retailer, at any time, upon written request, EnPowered will provide you with: (a) a breakdown of the electricity supply charge appearing on your bill, showing the portion payable for the Services and the portion payable for the electricity supply at the Hourly Ontario Energy Price (HOEP), and/or (b) any outstanding amounts owing for the Partner’s products and services purchased by you and billed through the On-Bill Services.
2.4. Billing errors. Despite EnPowered’s best efforts, billing errors may occur from time to time. Each party will promptly notify the other party upon discovery of any billing error, and the parties will work in good faith to minimize the effect of such billing error.
2.5. Electricity Bill Payment. You must continue to pay your existing electricity bills in accordance with the payment terms on the bill. Failure to pay may result in suspension or termination of the On-Bill Services, or termination of this Agreement, by EnPowered, upon immediate notice.
2.6. Termination of On-Bill Services by you. You can terminate the On-Bill Services, and stop having Partner charges on your electricity bill, at any time by notifying EnPowered in writing. In the event that you notify EnPowered that you no longer wish to utilize the On-Bill Services, and request EnPowered to remove the charges for the Partner products and services from your energy bill, EnPowered will remove such charges from all future energy bills, and will notify the applicable Partner. You must inform EnPowered as to whether you wish to terminate this Agreement as a whole, or just the On-Bill Services. If agreed upon with EnPowered, you may switch to using the PAD Collection Service for any remaining charges to be collected on behalf of the Partner. EnPowered reserves the right to decline your request to switch to the PAD Collection Service, in its sole discretion.
2.7. Termination of On-Bill Services by EnPowered. As the policies and regulations of governments and third party entities that permit EnPowered’s ability to offer the On-Bill Services are outside of EnPowered’s control and may change in the future, in addition to the termination provisions of this Agreement, EnPowered shall be entitled to cease offering the On-Bill Services immediately and without penalty in the event that your utility, the Ontario Energy Board or any other applicable governmental or regulatory entity determines that the On-Bill Services can no longer be offered by EnPowered.
2.8. Effect of Termination on Outstanding Amounts. Upon any termination of the On-Bill Services or this Agreement, where you continue to owe outstanding amounts, EnPowered and/or Partner may, in their reasonable discretion: (a) automatically switch you to the PAD Collection Service and withdraw all amounts outstanding in relation to the On-Bill Services from your bank account as well as any future amounts owing, in accordance with the same or similar payment schedule as applicable to the On-Bill Services, (b) revert to Partner’s standard billing practices to bill you directly, (c) withdraw all outstanding amounts from your bank account through a separate pre-authorized debit agreement, whether with EnPowered, the applicable Partner, or other third party having a legal interest in the amounts to be collected, and/or (d) initiate collection proceedings against you regarding any and all outstanding amounts owing hereunder.
3. PAD Collection Services
3.1. PAD Collection Service. EnPowered offers the service of going “off-bill” wherein EnPowered deducts certain charges relating to your purchase of energy-related products and services that you owe to Partners from your bank account by means of a pre-authorized debit agreement entered into between you and EnPowered (in the form attached as Appendix A)(the “PAD agreement”), and remits such collected amount to Partners on your behalf (the “PAD Collection Service”).
3.2. Transparency. All charges payable through the PAD Collection Service will be clearly explained to you by e-mail, and will not exceed the amounts described in the e-mail. At any time, upon written request, EnPowered will provide you with: (a) the monthly amount to be withdrawn from your account, and/or (b) any outstanding amounts owing for the Partner’s products and services purchased by you and remitted through the PAD Collection Service.
3.3. Assignment of PAD. At any time during the PAD Collection Service, a Partner may request that EnPowered assign the PAD agreement to such Partner to continue collection of the payments owed by you, and/or EnPowered may assign the PAD agreement to a Partner and require the Partner to assume the PAD agreement from EnPowered. Such assignment will automatically terminate the PAD Collection Service hereunder, and the Partner will thereafter be solely responsible for all pre-authorized debit activities relating to collecting the then-outstanding amounts from you.
3.4. Independent PAD agreements. Nothing herein shall preclude you from independently and separately entering into a PAD agreement with a Partner; however, you must notify EnPowered upon entering into a PAD agreement with a Partner to prevent overlap and double collection.
3.5. Termination of PAD Collection Service. You can terminate the PAD Collection Service at any time by notifying EnPowered in writing. In the event that you notify EnPowered that you no longer wish to utilize the PAD Collection Service, EnPowered will notify the applicable Partner. You must inform EnPowered as to whether you wish to terminate this Agreement as a whole, or just the PAD Collection Service. If you are eligible to use the On-Bill Services and wish to switch to the On-Bill Services for any remaining charges to be collected on behalf of the Partner, you must notify EnPowered, and EnPowered may accept or reject such request, in its sole discretion.
3.6. Effect of Termination on Outstanding Amounts. Unless you have switched to the On-Bill Services upon termination of the PAD Collection Service as described in Section 3.5, EnPowered shall have no further responsibility to collect amounts from you to remit to the Partner, the Partner will revert to its standard billing practices in billing you directly for any outstanding charges for products and services following any such termination, the pre-authorized debit agreement between you and EnPowered shall be deemed to have terminated, and EnPowered shall have no further obligation other than to remit any amounts owing to Partners that accrued prior to the effective date of termination. The foregoing shall not preclude the remedies available in Section 4.2 below, if applicable.
4. Payment Respecting the Services
4.1. Commitment to Using Services. You agree to only use the Services for payments for any products and services you have agreed to be billed through the Services, and not to make any direct payment to Partners for such products and services, unless you have obtained EnPowered’s express written consent for such direct payments.
4.2. Failure to Pay. Any failure by you to make payments through or respecting the Services shall be deemed a material breach, and shall be grounds for termination of this Agreement by EnPowered. Additionally, EnPowered or Partners may withdraw all outstanding amounts from your bank account through any executed pre-authorized debit agreement, whether with EnPowered, the applicable Partner, or other third party having a legal interest in the amounts to be collected, and/or initiate collection proceedings against you regarding any and all outstanding amounts owing hereunder.
5. Termination of the Services
5.1. Effect of Termination. Upon any termination of both the On-Bill Services and the PAD Collection Service, EnPowered shall have no further responsibility to bill you, and the Partner will revert to its standard billing practices in billing you directly for any outstanding charges for its products and services. You are solely responsible for determining whether there are any fees, costs or penalties associated with the resumption of direct billing from the Partner; EnPowered is not responsible for any fees, costs or penalties charged by any third party that may arise from any termination of the Services.
PART C – General Terms and Conditions
- Entire Agreement; Modifications.
1.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements between the parties. Except as otherwise provided herein, this Agreement may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties. If any one or more of the provisions of this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, any such provision shall be severable from this Agreement. No waiver by either party of a breach or omission by the other party under this Agreement shall be binding on the waiving party unless it is expressly made in writing and signed by the waiving party.
1.2. Modification. EnPowered reserves the right, in its sole discretion, to modify or replace any terms of this Agreement, or change, suspend, or discontinue the Services at any time by posting a notice on its website or by sending you notice via e-mail or by another appropriate means of electronic communication; for instance, such changes may be made if your utility changes the services it offers, or if a change in the law requires EnPowered to change this Agreement. EnPowered will endeavour to provide you with reasonable notice of such changes. Your continued use of the Services following notification of any changes to this Agreement constitutes acceptance of those changes.
1.3. English Language. It is the express will of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
2.1. Except as expressly permitted herein, neither party shall assign or subcontract or purport to assign or subcontract any of its rights or obligations under this Agreement without first obtaining the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, EnPowered may, at any time, assign and transfer this Agreement and all rights and obligations hereunder to its parent company, wholly owned subsidiary of its parent company, affiliate, or any successor entity created through merger, acquisition, reorganization or otherwise. This Agreement shall be binding upon the Parties hereto and their respective lawful successors and permitted assigns.
3.1. Termination for convenience. Either party may terminate this Agreement at any time, with or without cause, by providing written notice to the other party. No cancellation fee will be applied to any termination of this Agreement.
3.2. Termination for cause. Without limiting the foregoing, EnPowered shall be entitled to terminate this Agreement immediately if: (a) you do not make your electricity payments on time; (b) you sign another agreement for electricity supply to your service address without EnPowered’s express prior written consent; (c) you have entered into this Agreement with EnPowered being your electricity supplier, and you subsequently remove EnPowered as your electricity supplier; (d) your electricity usage falls below 150,000 kwh, or such other threshold as the applicable regulatory authorities determine to be a low volume consumer; (e) you breach this agreement; (f) your utility or Energy Retailer (as applicable) cannot process this agreement for reasons beyond EnPowered’s control; or (g) there is a change in the structure of the Ontario wholesale electricity market preventing the provision of energy or the Services to you under these terms.
4. Representations and Warranties.
4.1. Mutual Warranties. Each party represents and warrants that it has the capacity, full right and absolute authority to enter into this Agreement, and will fully perform all its obligations arising under this agreement in compliance with all applicable laws, ordinances, codes and regulations.
4.2. Information Warranty. You further represent and warrant that all information that you provide hereunder (such as contact and account information) will be up-to-date, complete and accurate information, and that EnPowered will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided by you. You agree to promptly notify EnPowered of any changes to such information.
4.3. Disclaimer. APART FROM THE WARRANTIES CONTAINED IN THIS SECTION 4, ALL SERVICES HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. ENPOWERED ASSUMES NO RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES WHATSOEVER IN THE SERVICES, AND UNDER NO CIRCUMSTANCES WILL ENPOWERED BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICES. You acknowledge that EnPowered has no control over, and no duty to take any action regarding any acts or omissions of Energy Retailers, Partners or governmental or regulatory authority.
5. Indemnity and Limitation of Liability.
5.1. Indemnity. You agree to indemnify, defend and hold harmless EnPowered from any claim or demand made by any third party due to or arising out of: (a) your use or misuse of the Services, (b) any breach of this agreement by you, (c) your breach of any terms provided to you by your utility, Energy Retailers (as applicable), or Partners, or (d) your violation of any third-party rights or any applicable laws.
5.2. Limitation of Liability. The only type of damages that can be recovered against EnPowered arising from or related to this agreement shall be your direct damages, if any, to the limited extent arising from EnPowered’s gross negligence or wilful misconduct. In no event shall EnPowered’s aggregate liability exceed the amount paid by you for the portion of its services that gave rise to the claim. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ENPOWERED BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT) WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SERVICES, EVEN IF ENPOWERED HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3. Claim Time Limit. To the fullest extent allowed by law, and notwithstanding any statute of limitations, statute of repose, or other legal time limit to the contrary, no claim shall be brought by you against EnPowered after the earlier of the following to occur (the “Claim Time Limit”): (i) the time period for bringing an action under any applicable provincial, state or federal statute of limitations or (ii) one (1) year after the date upon which you discovered, or should have discovered, the facts giving rise to an alleged claim. Any claim not brought within the Claim Time Limit is waived.
6. Force Majeure.
6.1. If either party is delayed in or precluded from complying with any provision of this Agreement by a force majeure event beyond such party’s reasonable control (whether or not foreseeable) including but not limited to fire or explosions, lockouts, strikes, slowdowns, labor shortages or disturbances, acts of God, floods, hurricanes, tornadoes, earthquakes, natural disasters, war, insurrection, terrorism, riots, acts of the public enemy, acts of governmental authority, embargo, epidemics, or quarantine restrictions, such delay in compliance or non-compliance will be excused. Neither party shall be liable to the other for damages by reason of any delay or suspension of performance resulting from the foregoing force majeure events.
7. Independent Contractor.
7.1. EnPowered is an independent contractor of you, the utility, Energy Retailers (if applicable) and Partners; EnPowered does not make any representations or warranties on behalf of the utility, Energy Retailers, or Partners, and has no liability whatsoever for acts or omissions of the utility, Energy Retailers, or Partners, or their products and/or services.
8.1. Any notices, reports or other communications required or permitted to be given under this Agreement shall be in writing and shall be sufficient if delivered by hand or sent by registered mail, courier or electronic mail addressed to EnPowered or you at their respective addresses appearing in this Agreement, or to such other address as one party advises the other party in writing.
9. Governing Law.
9.1. This Agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada.
10. Electronic Agreement.
10.1. You acknowledge and agree that by clicking on the “I AGREE” button (or similar buttons or links as may be designated by EnPowered to show your acceptance of this Agreement and/or your agreement to use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts and create other records, and to the electronic delivery of notices, policies and records of transactions relating to the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.
11.1. If you have any questions regarding this Agreement, or if you have any questions, complaints, claims or other legal concerns relating to EnPowered or its business, please contact EnPowered at https://enpowered.com/contact.
11.2. Where EnPowered is your energy retailer, if you require assistance regarding the supply of electricity that EnPowered cannot provide, you can contact the Ontario Energy Board Customer Service Centre at 416-314-2455 or toll free at 1-877-632-2727. If you are obtaining electricity from a third party Energy Retailer, then any questions relating to the supply of electricity should be directed to such Energy Retailer. If you require assistance respecting Partner products or services, please contact the applicable Partner directly.