MASTER SERVICE AGREEMENT BY AND AMONG SPARK HOLDCO, LLC RETAILCO SERVICES, LLC AND NUDEVCO RETAIL, LLC Dated Effective January 1, 2016

THIS MASTER SERVICE AGREEMENT (the “Agreement”) is entered into effective as of the 1st day of January, 2016 (the “Effective Date”), between RetailCo Services, LLC (“Servco”), a Texas limited liability company with its principal business address at 12140 Wickchester Lane, Suite 100, Houston, Texas 77079, and Spark Holdco, LLC (together with its Subsidiaries, “Client”), a Delaware limited liability company with its principal business address at 12140 Wickchester Lane, Suite 100, Houston, Texas 77079. Each of Servco and Client is sometimes referred to hereinafter as a “Party” and collectively as the “Parties”. NuDevco Retail, LLC (“NuDevco”), a Texas limited liability company with its principal business address at 12140 Wickchester Lane, Suite 100, Houston, Texas 77079, is an additional party to this Agreement solely for purposes of issuing the guaranty set forth in Section 14.18.

NOW THEREFORE, for and in consideration of the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

1.1    Definitions. Capitalized terms used in this Agreement but not defined in the body of this Agreement shall have the meanings ascribed to them in Exhibit A. Capitalized terms defined in the body of this Agreement are listed in Exhibit A with reference to the location of the definitions of such terms in the body of this Agreement.

1.2    Interpretations. In this Agreement, unless a clear contrary intention appears: (a) the singular includes the plural and vice versa; (b) reference to a Person includes such Person’s successors and assigns but, in the case of a Party, only if such successors and assigns are permitted by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity; (c) reference to any gender includes each other gender; (d) references to any Exhibit, Schedule, Section, Article, Annex, subsection and other subdivision refer to the corresponding Exhibits, Schedules, Sections, Articles, Annexes, subsections and other subdivisions of this Agreement unless expressly provided otherwise; (e) references in any Section or Article or definition to any clause means such clause of such Section, Article or definition; (f) “hereunder,” “hereof,” “hereto” and words of similar import are references to this Agreement as a whole and not to any particular provision of this Agreement; (g) the word “or” is not exclusive, and the word “including” (in its various forms) means “including without limitation”; (h) each accounting term not otherwise defined in this Agreement has the meaning commonly applied to it in accordance with GAAP; (i) references to “days” are to calendar days; and (j) all references to money refer to the lawful currency of the United States. The Article and Section titles and headings in this Agreement are inserted for convenience of reference only and are not intended to be a part of, or to affect the meaning or interpretation of, this Agreement.

2.    Servco Services

2.1    Provision of Services. Subject to the terms and conditions provided herein and in consideration of Client’s payment of the applicable fees set forth herein, Servco shall provide the services described in Exhibit B and in any applicable statement(s) of work issued under Section 2.2 (collectively, the “Services”) to Client and its Subsidiaries. Servco shall perform the Services in accordance with the service level agreements set forth in Exhibit C and shall cause the Services to be performed: (a) with qualified personnel (as to training, skill and experience); (b) in a good, professional and workmanlike manner; (c) consistent with industry standards and generally accepted practices; and (d) with the experience and expertise necessary to provide the Services in accordance with this Agreement.

As a part of the Services, Servco will continue and complete the current initiatives and projects currently being implemented by Client’s information technology group as set forth on Exhibit B.

2.2    Additional Services and Statements of Work. If Servco offers and Client elects to purchase additional Services (“Additional Services”), such Additional Services shall be described in one or more additional statements of work (a “Statement of Work”), which Statement of Work will include any mutually agreed upon changes in the pricing (i.e. additional compensation) to compensate Servco for such Additional Services. Each mutually agreed upon Statement of Work shall be signed by Servco and Client and, without any further amendment, shall automatically be incorporated into this Agreement. If the proposed Additional Services or series of Additional Services are not reasonably expected to require Servco to (i) spend more than one thousand (1,000) hours of work to perform the Additional Services or series of Additional Services, (ii) hire additional personnel in order to provide such Additional Services, or (iii) acquire additional assets to perform such Additional Services, then no Statement of Work shall be required and shall be deemed included in the then existing fees and expenses being paid by Client to Servco. Otherwise, a Statement of Work shall be mutually agreed to between Client and Servco.

2.3    Improvements and Best Practices. Servco will respond reasonably, promptly and in good faith to reasonable requests for system enhancements and modifications to support business functionality desired by Client and shall exercise commercially reasonable efforts to accommodate such requests on commercially reasonable terms and rates for similar services (for both the up front and incremental ongoing costs of such additional services, whether in the form of additional Servco personnel or additional hardware or software requirements). If such improvements are not reasonably expected to incur up front or ongoing costs to the level set forth in the penultimate sentence of Section 2.2, no incremental costs will be charged to Client.

2.4    Labor and Materials. Servco shall perform all work necessary to provide the Services in accordance with this Agreement. Except as provided in this Agreement or in a Statement of Work, Servco shall furnish and pay for all labor, materials, services, facilities, equipment and computer resources necessary to provide the Services and meet its obligations under this Agreement, excluding the Assigned Assets to be transferred to Servco upon execution of this Agreement by Client and Servco.

2.5    Controls Environment. Servco shall maintain the existing internal controls of Client that are in place over those functions that are being outsourced to Servco as of the Effective Date as more fully set forth on Exhibit D, as such controls may be revised from time to time as mutually agreed to by the Parties. The Parties acknowledge that additional or improved controls may be necessary in the future to assist Client in meeting its obligations to certify its internal control environment as a part of its financial reporting obligations as a public company. Servco shall implement such additional internal controls as proposed by Client in consultation with Servco; provided that, the Parties shall mutually agree on any additional Fees that may be necessary to accommodate Servco for any such additional controls pursuant to a Statement of Work. Initial expenses incurred by Servco to achieve initial compliance with Sarbanes-Oxley shall be borne by Servco unless such expenses exceed Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), in which event the Parties shall mutually agree on a change to the Fees in Article 3 to mutually share in such cost.

2.6    Audit Practices and Services. Servco will perform an annual SSAE 16, SOC 1, Type II audit with regard to Servco’s billing and electronic data interchange service at its sole cost and expense and in compliance with the standards set forth by the American Institute of Certified Public Accountants. Servco will provide Client with the results of or reports produced from such audits as soon as practicable after completion of the audit, but in no event later than November 30, of each year for which the audit applies.

2.7    Agency Appointment. Solely with respect to the Services being provided by Servco on behalf of Client and solely to the extent necessary for Servco to provide such Services, Client hereby appoints Servco as its agent to act in Client’s name and on its behalf to enable Servco to provide the Services, including allowing Servco personnel to maintain and utilize Spark email addresses in their communications with utilities, customers, local distribution companies, independent system operators and others.

3.    Fees / Payment

3.1    Fees. Client shall pay Servco the fees and other charges set forth in this Agreement (including the Pricing Schedule set forth in Exhibit E and as may be amended in writing by the Parties or otherwise supplemented by schedules of fees attached to specific Statements of Work or other schedules of fees agreed to in writing by the Parties) for the Services provided under this Agreement or any Statement of Work (collectively, the “Fees”).

3.2    Expenses. Servco shall pay all expenses that are incurred by Servco in providing the Services to Client hereunder.

3.3    Payment. Within ten (10) days of the end of each month, Servco shall invoice Client for the Services provided during such month. Client shall pay the full amount set forth in each invoice within ten (10) days after receipt of the invoice by Client. If Client in good faith disputes any portion of the invoice, then Client shall notify Servco in writing as soon as reasonably practicable but no later than twenty (20) days from the date of Client’s receipt of the invoice, specifying the amount that is disputed, and setting forth in reasonable detail the basis for the dispute (an “Invoice Dispute Notice”). Any payment disputes shall be resolved in accordance with the alternative dispute resolution procedures set forth in Article 13.

3.4    Changes in Fees. The Parties acknowledge and agree that the initial Fees are a mutual attempt by the Parties to allocate risk and costs between Client and Servco. During the first two calendar quarter periods (i.e. the first six months) commencing on the Effective Date, the Fees as set forth in this Section 3 shall not be changed. Within thirty (30) days following the end of the 2^nd calendar quarter of 2016, and each calendar quarter thereafter, the Parties will meet to address the sufficiency and reasonableness of the Fees and shall mutually agree to any amendments to the Fees to reflect changes in assumptions based on actual results during the first two calendar quarters and each subsequent calendar quarter thereafter. While the Parties are negotiating any changes to the Fees, the existing Schedule of Fees shall remain in full force and effect. Any amendments or changes to the Schedule of Fees shall be retroactive to the beginning of the calendar quarter in which changes to the Fees are mutually agreed to.

4.    Service Level Agreements and Penalties

4.1    Service Level Agreements (“SLAs”). Servco shall perform the services in accordance with the SLAs as set forth in Exhibit C.

4.2    Service Level Payments.

4.2.1    Credits or Payments. Client shall receive either a credit against subsequent invoices or a payment of cash (a “Penalty Payment”) upon the failure of Servco to meet the SLAs as set forth on Exhibit C. The Target column in Exhibit C will be utilized to determine the level of Penalty Payments upon which the credits or payments will be determined.

4.2.2    Calculation of Penalties.

i.Each month there will be a cap (the “SLA Penalty Cap”) which shall initially be equal to One Hundred Thirty Eight Thousand and No/100 Dollars ($138,000) on the total Penalty Payments that may be owed by Servco to Client. Annually on January 30 of each year in which this Agreement is in effect commencing in 2017, the SLA Penalty Cap shall be adjusted based on the Fees charged for the prior year pursuant to the following formula: (total Fees payable for Services in the prior year ÷ 12) * 10%.

ii.In order to calculate the Penalty Payment during a particular month, the Parties shall add the percentage under the Penalty Allocation Percentage column of Exhibit C for each SLA that Servco failed to meet the required level during the applicable month and multiply the sum of such percentages by the SLA Penalty Cap, but in no event shall the Penalty Payment exceed the SLA Penalty Cap.

4.3    Damages. In addition to the Penalty Payments set forth in Section 4.2, if as a result of Servco’s failure to perform the services in accordance with the SLA’s as set forth in Exhibit C, Client suffers damages in an amount exceeding Five Hundred Thousand and No/100 Dollars ($500,000), Servco agrees to pay to Client the damages suffered by Client less any Payment Penalties credited or paid by Servco to Client during the period of time such damages were incurred (the “Damage Penalty”).

4.4    Limit on Payments or Credits. In no event shall the total of all Penalty Payments and Damage Penalties applicable to performance in any twelve (12) month calendar period exceed the sum of Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000).

4.5    SLA Reporting. Within fifteen (15) days following the end of each month, Servco shall provide a monthly report to Client on Servco’s performance and compliance with each SLA for such month, including the amount of SLA failures and the resulting Penalty Payments. Servco shall also provide Client with an annual report no later than February 15 of the following year detailing for each SLA failure the amount of Penalty Payments for the applicable reporting year.

4.6    Changes in SLAs. The Parties acknowledge and agree that the initial SLAs were established in an attempt to match the performance of Client’s personnel or the contractual requirements of Client’s third party service providers, if applicable, as of the Effective Date. Within thirty (30) days following the end of the first calendar quarter subsequent to the Effective Date, the Parties will meet to address the SLAs applicable during such calendar quarter to determine whether the SLAs need to be modified and shall mutually agree to any amendments to the SLAs as appropriate to reflect changes in assumptions based on actual results during the calendar quarter of operations under this Agreement. Within thirty (30) days following the end of each subsequent calendar quarter, the Parties will meet to address the SLAs applicable during the previous calendar quarter to determine whether any changes to such SLAs should be made. Any such change shall be mutually agreed to by the Parties in writing. While the Parties are negotiating any changes to the SLAs, the existing SLAs shall remain in full force and effect. Unless otherwise expressly agreed to in writing by the Parties, any amendments or changes to the SLAs shall be retroactive to the beginning of the calendar quarter in which a change to the SLAs are mutually agreed to.

5.    Term and Termination

5.1    Term. This Agreement shall commence on the Effective Date and shall remain in full force and effect for a period of one (1) year thereafter (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one (1) year periods (“Renewal Terms”) unless terminated earlier in accordance in this Article 5. Collectively, the Initial Term and each successive Renewal Term shall be referred to herein as the “Term”.

5.2    Client’s Termination Rights. Client may terminate this Agreement:

5.3    Servco’s Termination Rights. Servco may terminate this Agreement:

5.4    Effect of Termination. Upon termination of this Agreement for any reason (subject to any applicable Transition Period, in which event the following provisions, shall not apply until the end of such Transition Period): (a) Servco shall immediately cease providing the Services to Client and all licenses granted hereunder shall terminate; (b) Client shall return to Servco all of Servco’s Confidential Information and shall, at Servco’s option, delete, destroy, or permanently erase any software installed in Client’s computer systems downloaded from the Services or from Servco in connection with the provision of the Services to Client by Servco; (c) Servco shall return to Client and, upon direction from the Client, destroy all remaining copies of Customer Data, Client Intellectual Property and other Client Confidential Information; and (d) Client shall promptly pay to Servco all unpaid fees due and owing.

5.5    Transition Services. Upon termination of this Agreement, unless otherwise requested by Client, Servco will reasonably cooperate with Client and provide reasonable assistance and information to enable Client to transition to a new platform and/or service provider, as applicable, and to continue to provide the Services in accordance with the terms hereof until such transition is complete (collectively the “Transition Services”). Such Transition Services will be provided at Servco’s then-current Fees (i.e., the Fees in effect at the time that notice of termination is given, regardless of whether the parties have begun discussions to renegotiate Fees under Section 3.4) and at the then current SLAs (i.e., the SLAs in effect at the time that notice of termination is given, regardless of whether the Parties have begun discussions to renegotiate SLAs under Section 4.6) for the Services rendered during the Transition Period. Transition Services shall be provided for so long as is necessary to enable Client to transition to a new platform and/or service provider (the “Transition Period”), provided that in no event shall the Transition Period exceed six (6) months from the effective date of termination of this Agreement. The terms and provisions of this Agreement, including Article 3 (excluding Section 3.4) and the SLAs thereunder (excluding Section 4.6), shall continue to apply with respect to Services during the Transition Period.

5.6    Transfer of Assets and Personnel to Client After Termination. Upon any termination of this Agreement or during a Transition Period under Section 5.5, and without prejudice to any other remedy Client may have hereunder, Client shall be entitled to cause Servco to assign to Client or its designee (i) all of the Assigned Assets that were transferred by Client to Servco, (ii) any future or additional assets that were paid for by Client as provided in Section 2.2 or Section 9.1 and (iii) any additional Client Work Made for Hire and Client Work Product created during the Term, in each case in (i), (ii) and (iii) to the extent they still exist, and (iii) Servco’s then existing personnel (collectively, the “Servco Infrastructure”). Servco shall assist the Client in the transfer of the Servco Infrastructure to Client including without limitation: (a) the execution of transfer and assignment documentation sufficient to give Client good and marketable title to assets being assigned and rights under all agreements necessary to operate the Servco Infrastructure; (b) access to all information of Servco including Confidential Information data and records as may be requested to effect the transfer; (c) the transfer of the employees of Servco to Client; and (d) making the Servco workforce available to provide transition assistance to Client.

5.7    Assumption of Servco’s Performance Obligations. At the end of any applicable Transition Period, Client shall assume responsibility for Servco’s operations, including the provision of similar Services to Client and to any other customer of Servco under Servco’s existing customer contracts and at the same rates such Services are being provided to such customers and under the terms and provisions of the third party customer contracts Servco has with such customers. Servco agrees that with respect to any third parties, including Affiliates of Servco, any agreements to provide services to such third parties by Servco will include provisions substantially the same as those set forth in Sections 5.2 and 5.3 (Termination Rights) and the rights of the Parties under Sections 3.4 (Change to Fees), 4.6 (Changes to SLAs) and Section 5.5 (Transition Services) as set forth in this Agreement and will include pricing provisions which would allow Client, if it is ever required to assume Servco’s obligations as set forth in this Section 5.7), to recover its full costs of providing services to such third parties plus five percent (5%).

6.    Client Step-In Rights

6.1    Client’s Right to Take Control. Without prejudice to any other remedy Client may have hereunder, Client may at its discretion take control of so much of the Services as is necessary for that function to be performed if:

For purposes of this Section 6.1, Key SLAs shall mean SLA No.s 2, 3, 4, 5 and 6 in Exhibit C. Servco shall continue to provide any remaining Services in accordance with this Agreement during any period in which step-in rights under this Section 6.1 are being exercised and shall continue to be compensated for the Services it continues to provide.

6.1.1    Appointment of Third Party. In connection with the exercise of the step-in rights in this Article 6, Client may obtain services similar to the Services elsewhere or may make any other arrangements considered necessary by the Client to obtain or maintain the applicable Services at Client’s required levels.

6.1.2    Step-In Notice. Client will give written notice (the “Step-In Notice”) to Servco as soon as practicable of its intention to exercise its rights under Article 6. This Step-In Notice shall include: (a) the reason for exercising such rights in reasonable detail; (b) details of the third party; and (c) description of the intended contract with any third party.

6.1.3    Duty to Assist. Servco shall assist the Client and the third party in the exercise of Client’s step-in rights including: (a) facilitating access to Servco’s relevant files and systems as required by the Client or the third party selected by Client after such third party’s execution of a confidentiality agreement reasonably acceptable to Servco; (b) providing access to Client’s Confidential Information, information, data and records as required by the Client or the third party selected by Client after such third party’s execution of a confidentiality agreement reasonably acceptable to Servco; and (c) making Servco personnel available to provide information and assistance as required by Client or the third party selected by Client.

6.1.4    No Remuneration. Servco is not entitled to receive Fees, charges or any remuneration whatsoever that relate to the Services performed by the Client or any third party under this Article 6, other than the Fees payable by Client to Servco for any Services not being performed by Client or such third Party.

6.1.5    Liability. Neither the Client nor third party is liable to Servco for any act or omission during the period of step-in unless the act or omission is caused by Client’s or such third party’s negligence or willful misconduct.

6.1.6    Cessation of step-in. The step-in rights shall cease when: (a) Client determines, in its absolute discretion, that Servco has the ability to meet the SLAs; (b) the Agreement is terminated by the Client or Servco; or (c) the Term expires with the passing of time.

6.1.7    No Waiver of Termination Rights. Nothing in this Article 6 prevents either Party from being entitled to give notice of termination.    

7.    Reporting, Audit Rights and Governance

7.1    Reports. In addition to the monthly and annual SLA reports issued pursuant to Section 4.5, Servco shall provide the following reports to Client within fifteen (15) days after the end of the applicable reporting period or earlier, as reasonably required by Client :

Update on implementation of internal controls structure at Servco.

Accounting reports as needed to close Client’s books within the applicable accounting window.

Collateral mark to market report by the 3^rd Business Day of each month. Collateral unbilled and accounts receivable by the 6^th Business Day of each month.

Lykos month-end reporting starting on the third Business Day of each month.

Applicable reports to support the risk and supply group feeds to Sirius.

Applicable reports to Client’s regulatory group regarding disconnections and reconnections for non-payment of bills for reporting to the Public Utility Commission of Texas.

Month-over-Month Call Center metrics report (provides trending on various KPIs.

Monthly CSAT/OOP detail reporting.

Reporting (weekly, monthly and on demand) reconciliations of revenue, payments, volume, counts, aging and adjustments to their respective amounts across systems.  This reconciliation will occur between the respective CIS application (all systems used by Spark and associated brands), Gnosis 2 and Lykos by the close of the 2^nd business day of each month.   When variances occur, both parties agree to work in good faith to resolve in mutually agreed timeframes.

In addition, Servco shall make available to Client as needed access to Client’s customer and other operating information.

7.2    Audits. Upon reasonable advanced written notice to Servco, Servco shall allow Client to:

7.3    Governance. The Parties shall establish an executive committee consisting of the Chief Executive Officer and Chief Operating Officer (or functional equivalent) of each of Client and Servco which shall meet monthly as soon as practicable after the monthly reports under Section 4.5 and 7.1 have been delivered to Client but in no event later than the 20^th day of each calendar month for the purpose of reviewing the monthly, quarterly and annual reports, as applicable, and to discuss and evaluate any material decisions or changes in Servco’s business and the Services.

7.4    Notice of Material Matters and Consultation. Servco shall give ten (10) days prior written notice to Client prior to the occurrence of the following:

Upon written notice to Servco, Client shall be entitled to a formal consultation regarding any of the foregoing matters. Servco shall provide Client with such additional information as may be reasonably requested by Client in connection with the matter prior to any consultation under this Section 7.4. Servco shall in good faith consider any suggestions or recommendations made by Client with respect to any of the foregoing, it being agreed that the final decision with respect thereto shall be in Servco’s reasonable discretion.

7.5    Audit Committee of Client. Upon written request of Client or the Audit Committee of the Board of Directors of Client, Servco shall present the annual reports required pursuant to Section 7.1 to the Audit Committee at a time reasonably convenient to the Audit Committee and Servco, which time may be at the first meeting of the Audit Committee in each calendar year. At any such meeting, the Chief Executive Officer (or functional equivalent) of Servco shall attend and shall respond to all reasonable inquiries of the Audit Committee.

8.    Indemnification; Liability

8.1    Indemnification by Servco. Servco hereby agrees to indemnify, hold harmless and defend Company, its Subsidiaries, and any member, director, officer, employee or agent thereof, from and against all third-party claims, demands, actions, losses, damages or expenses (including reasonable attorney’s fees and court costs related to such defense) (collectively “Liabilities”) arising out of or resulting from:

8.2    Indemnification by Client. Client hereby agrees to indemnify, hold harmless and defend Servco, its affiliates (excluding any Subsidiaries of Spark Energy), and any member, director, officer, employee or agent thereof, from and against all Liabilities arising out of or resulting from:

8.3    Indemnification Procedures. The Party seeking indemnity (the “Indemnified Party”) shall notify the other Party (the “Indemnifying Party”) promptly in writing of any claim for indemnification hereunder. At the Indemnifying Party’s cost and expense, the Indemnifying Party shall promptly take control of the defense of such claim, and shall defend such claim, including the control of the defense and all related settlement negotiations; provided that the Indemnified Party shall be fully released in connection with any final settlement and shall be entitled to approve the final settlement. The Indemnified Party shall provide the Indemnifying Party with reasonably requested assistance, information, and authority to perform the above. If the Indemnifying Party does not assume control of the defense of the claim for which indemnity is being sought, the Indemnified Party may defend such claim in such manner, as it deems appropriate at the cost and expense of the Indemnifying Party.

8.4    EXPRESS NEGLIGENCE DOCTRINE. The indemnification provisions in Sections 8.1(f) and 8.2(f) shall be enforceable regardless of whether the liability is based upon, and regardless of whether any person (including the person from whom indemnification is sought) alleges or proves, the sole, concurrent, contributory or comparative negligence of the person seeking indemnification.

8.5    Limitation on Damages. Each of the Parties shall be liable to the other for any damages arising out of its performance or failure to perform its obligations under this Agreement; provided, however, that the aggregate damages payable by either Party to the other Party hereunder shall not exceed Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000). This limitation expressly excludes the Parties’ indemnification obligations under this Article 8, the obligations to make Penalty Payments under Article 4 and the obligation to pay the Fees to Servco under Article 3.

8.6    Consequential Damages. Except in connection with a Party’s indemnification obligations hereunder applicable to third party claims, in no event shall any Party hereto be liable to the other Party for consequential, incidental, punitive, special, exemplary or indirect damages or expenses (including, without limitation, lost profits or other economic loss, lost reimbursements, lost data, or lost savings), even if such Party was advised of the possibility of the occurrence of such damages.

8.7    Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND THE EXHIBITS AND STATEMENTS OF WORK HERETO, THE SERVICES ARE PROVIDED TO CLIENT ON AN “AS-IS” BASIS WITH NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, AND SERVCO AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8.8    Pass-through Warranties. Client shall to the extent reasonably possible and permissible, pass-through to Servco all available warranties for hardware, software and services assigned by Client to Servco. In addition, with respect to any assets assigned by Servco to Client pursuant to Section 5.6, Servco shall to the extent reasonably possible and permissible, pass-through to Client all available warranties for hardware, software and services applicable to such assets.

8.9    Data Accuracy Representation.

Servco represents and warrants that at all times during the Term, Customer Data will be (a) generated and maintained in the same or similar manner that Client generated and maintained such Customer Data prior to the Effective Date and will use commercially reasonable efforts to ensure the accuracy and completeness of such Customer Data consistent with Client’s prior practices, and (b) provided to Client in the same or similar manner that such Customer Data was provided to Client in meeting its financial reporting and other regulatory and legal obligations prior to the Effective Date of this Agreement.

“Customer Data” means all data and information that is submitted, directly or indirectly, to Servco by Client or generated, obtained or learned by Servco in connection with the Services under this Agreement. The raw data and detailed supporting information and reports relating to performance against service levels constitute Customer Data.

9.    Transfers, Ownership and Licenses

9.1    Initial Transfers of Assets, Intellectual Property and Contractual Rights. Simultaneous with the execution of this Agreement and as a condition to Servco’ s obligations hereunder, Servco and Client (and Client’s Subsidiaries as applicable) shall enter into: (a) an assignment and assumption of the contracts listed on Exhibit F (the “Assigned Contracts”) in a form mutually agreed to by Servco and Client; and (b) an assignment and bill of sale for the assets and intellectual property set forth on Exhibit G (the “Assigned Assets”) in form mutually agreed to by Servco and Client. In addition, if any future or additional assets that are capable of being capitalized under GAAP are needed by Servco to perform the Services for Client, such future or additional assets shall, in Client’s sole discretion, either be (i) acquired by Client for use by Servco as Client’s agent or (ii) acquired by Servco, the cost of which would be addressed in accordance with Section 2.2.

9.2    Transfer of Personnel. Simultaneous with the execution of this Agreement and as a condition to Servco’s obligations hereunder, certain of Client’s personnel that previously were involved in providing services substantially similar to the Services, will be transferred to Servco and will become employees of Servco on similar terms as those being provided by Client at the Effective Date. In connection with such transfer of Client’s employees, the following shall apply:

(a)Each former Client employee hired by Servco shall receive credit for prior service with Client or its Affiliates for purposes of (i) paid time off (“PTO”) accrual and (ii) 401(k) plan vesting. In addition, each such employee shall be offered the opportunity to participate in the Servco employee benefit programs. For purposes of determining the number of PTO days to which each of the Client’s employees hired by Servco shall be entitled from and after such employee’s employment Date, Servco shall credit or shall cause to be credited all PTO days accrued or earned but not yet taken by such employee as of his or her employment date.

(b)Client agrees that nothing contained in this Agreement or the hiring of Client employees by Servco shall in any way effect the vesting of any restricted stock unit awards previously granted to such Client employees under its long term incentive plan and further agrees that it will take all actions necessary to effectuate the foregoing.

(c)Client agrees that if it determines in its sole and absolute discretion that bonuses were earned for service in 2015 by any of the Client’s employees that are subsequently hired by Servco, such bonuses shall be paid to such employees by Servco. With respect to such bonuses that are paid by Servco covering former Client employees, Client agrees to reimburse Servco for such bonuses within three Business Days following its receipt of invoice from Servco covering such paid bonuses. Servco shall pay 2015 bonuses pursuant to Client’s written instructions no later than five Business Days following payment of 2015 bonuses by Client to Client’s employees. Client shall be entitled in its sole and absolute discretion to issue equity awards under its long-term incentive plan to key Servco employees.

(d)Client further agrees that consistent with past practices, it shall accrue for bonuses to be paid to employees of Servco providing Services on behalf of Client for full year 2016 and all subsequent years during the term of this Agreement. If, in its sole and absolute discretion, Client determines that bonuses should be paid to Servco employees, Client shall inform Servco of such fact, including the amounts approved for such bonus payments. Client shall reimburse Servco up to the amounts approved by Client for Servco employee bonus payments (“Approved Bonus Payments”) upon Servco’s payment of such employee bonus payments by Servco to its employees within three Business Days following its receipt of invoice from Servco. Notwithstanding the foregoing, any decisions by Servco to pay any other bonuses or increases to the Approved Bonus Payments to Servco employees shall be made in Servco’s sole and absolute discretion. All Approved Bonus Payments shall be made no later than five Business Days following payment of the applicable year’s bonus payments by Client to Client’s employees. Client agrees that its decision regarding bonuses to be paid to Servco employees shall be made in the same manner as it does for its own employees and in a manner consistent with past practices.

(e)Nothing in this Agreement shall be deemed to (i) give rise to any rights, claims, benefits or causes of action to a Client employee or a former Client employee hired by Servco or any Servco employee, (ii) prevent, restrict, or limit Servco or any of its Affiliates, from modifying or terminating any of their benefit plans, programs or policies from time to time as they may deem appropriate, subject only to compliance with the express provisions of this Agreement for the benefit of Client or (iii) require Client or any of its Affiliates to modify or terminate any of their benefit plans, programs or policies, or prevent, restrict or limit Client or any of its Affiliates from modifying or terminating any of their benefit plans, programs or policies from time to time as they may deem appropriate, subject only to compliance with the express provisions of this Agreement. The provisions of this Agreement are solely for the benefit of the parties hereto and nothing in this Agreement, express or implied, shall confer upon any current or former Client Employee, Servco Employee, or legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Agreement, express or implied, shall be deemed an amendment of any employee benefit plan, program, policy or agreement providing benefits to any Client employee, former Client employee or Servco employee.

9.3    License to Client. Subject to the terms and conditions of this Agreement, Servco hereby grants to Client, during the Term, a non-transferable, non-exclusive, royalty free, non-sub-licensable license to: (i) use the Services in conjunction with Client’s systems, applications, and business practices, in order to facilitate Client’s transactions with Customers; (ii) provide access to the Services solely to Customers, employees, consultants or contractors of Client who have been expressly authorized to receive credentials to access and enable the use of the Services (“Authorized Users”); and (iii) use all data developed as a part of the Services, including results, customer information, historical financial and operating data and other information; provided that the term for the license under this subsection (iii) shall be perpetual and transferable. This license shall extend to third parties providing services to Client to the extent necessary to receive the benefit of the Services. The foregoing license shall be limited to Client’s receiving the Services in the operation of its business. Servco shall take all necessary actions with its licensors to ensure that Client is an authorized sub-licensee of such sub-licensors.

9.4    License to Servco. Subject to the terms and conditions of this Agreement, Client hereby grants to Servco and its Subsidiaries, during the Term, a non-transferable, non-exclusive royalty free, revocable, non-sub-licensable license to use (a) Client’s assets, systems, applications and data, including its servers in performing the Services on behalf of Client and on behalf of Affiliates of Servco; provided that any usage of Client’s systems by Affiliates of Servco shall in no way compromise or restrict Client’s access or use of such systems, applications or data; and (b) the Client Intellectual Property, including the access, use, transmission, modification, duplication and distribution of Client Data and the display of the Client Trademarks, solely for purposes of providing the Services to Client. This license shall extend to any third parties providing services to Servco to the extent Servco subcontracts any of its obligations hereunder pursuant to and in accordance with Section 14.5 provided that such third parties are bound by confidentiality and other obligations similar to those of Servco hereunder.

9.5    Ownership of Intellectual Property and Assets. Subject to the transfers contemplated in Section 9.1 above, each Party retains all right, title and interest in and to its assets and intellectual property owned by such Party. Client shall retain ownership of the Client Intellectual Property whether currently existing or developed after the Effective Date; provided that Servco shall be granted a non-transferable, non-exclusive, royalty free, revocable and non-sub-licensable license to use that portion of the Client Intellectual Property for the provision of services to third parties, which shall terminate in the event Servco ceases to provide such services to third parties. To the extent Servco acquires any interest in, or is deemed to own any of, the Client Intellectual Property, Servco shall execute such documentation as is necessary to enforce or evidence Client’s ownership rights in the Client Intellectual Property.

9.6    Client Intellectual Property. Client Intellectual Property includes Client Data, Client Trademarks, Client Work Product and Client Work Made for Hire. Upon termination of the Agreement, Servco shall return the Client Intellectual Property to Client.

10.    Confidential Information

Any Party (the “Disclosing Party”) may from time to time disclose Confidential Information to any other Party (the “Recipient”). “Confidential Information” is all non-public, confidential, and/or proprietary information concerning the business, technology, and strategies of the Disclosing Party that is conveyed to the Recipient orally or in tangible form and is either identified or marked as “confidential” or “proprietary” or, under the circumstances surrounding its disclosure, or due to its nature or sensitivity, should be reasonably understood by the Recipient as intended by the Disclosing Party to be treated as “confidential” and subject to the terms of this Agreement. Without limiting the generality of the foregoing, each Party agrees that (a) Confidential Information of Servco includes the software, all source code, documentation, inventions, know-how, methods, designs, specifications, updates and any and all other materials and information related to the Services; and (b) Confidential Information of Client includes all Client Data, Client Intellectual Property, Client business processes, Client marketing strategies and copies and details of the Client’s agreements with its customers. During the Term and for a period of two (2) years thereafter (and indefinitely with respect to any Confidential Information that meets the definition of a “Trade Secret” under applicable law and any personally identifying information, including, but not limited to, names, addresses and e-mail addresses), Recipient will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate, the existence, source, content or substance of any Confidential Information to any other party. Recipient shall use Confidential Information of the Disclosing Party only as necessary for the performance of this Agreement. Recipient will employ at least the same methods and degree of care (but no less than reasonable care) as Recipient employs with respect to its own Confidential Information of similar import to prevent the unauthorized disclosure or misappropriation of the Disclosing Party’s Confidential Information. Recipient will furnish the Confidential Information only to its and its affiliates’ employees, independent contractors, and agents who have (a) a bona fide need to know the Confidential Information to perform the obligations hereunder, (b) been informed of the confidential nature of the Confidential Information, and (c) agreed in writing to be bound by obligations of confidentiality no less restrictive than the terms and conditions set forth in this Agreement. The Receiving Party shall be responsible for any breach of confidentiality by such persons. The commitments in this Agreement will not impose any obligations on the Recipient with respect to any portion of the Confidential Information which: (i) is now generally known or available, or which hereafter, through no wrongful act or failure to act on the part of Recipient, becomes generally known or available in the public domain; (ii) is rightfully known by the Recipient prior to or at the time of receiving such information from the Disclosing Party or its representatives; (iii) is furnished to Recipient by a third party without any known restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by the Recipient without the use of the Disclosing Party’s Confidential Information or the breach of this Agreement; or (v) is approved for disclosure without further obligations of confidentiality by the express written authorization of the Disclosing Party. Notwithstanding anything herein to the contrary, the Recipient may disclose Confidential Information that is required to be disclosed by order or mandate of an instrumentality of the government, including, but not limited to, any court, tribunal or administrative agency; provided, however, that, prior to making such disclosure, to the extent legally permissible, the Recipient shall give the Disclosing Party as much advance notice as is reasonably practicable under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure. Each Party acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information and that each Party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be available in a court of competent jurisdiction. At the Disclosing Party’s option, Recipient shall promptly either destroy all Confidential Information in tangible or intangible form in its possession, or return all such copies to the Disclosing Party, and in either event, provide a written certification confirming the same, promptly upon the Disclosing Party’s written request.

11.    Governing Law. This agreement will be governed by the laws of the State of Texas, regardless of the choice of law principals thereof.

12.    Insurance

12.1    Insurance. Servco will obtain and maintain during the term of this Agreement the following types of insurance, in amounts not less than the following: (a) statutory limits worker’s compensation and employer’s liability in the amount of not less than $1,000,000 per occurrence; (b) commercial general liability in the amount of not less than $1,000,000 per occurrence and $2,000,000 aggregate; (c) commercial automobile liability (including all owned, non-owned and hired vehicles) in the amount of not less than $1,000,000 combined single limit; and (d) umbrella liability insurance in amount of not less than $5,000,000 per occurrence. Each such policy (excepting workers compensation and employers liability) shall list Client as an “additional insured”. Workers compensation and employer’s liability, commercial general liability and commercial automobile coverage shall be primary coverage. Umbrella liability follows the commercial general liability form, but is excess by nature. Workers compensation and employer’s liability, commercial general liability, and commercial automobile coverage shall provide waiver of subrogation in favor of Client. Workers compensation and employer’s liability, commercial general liability, commercial automobile coverage and umbrella liability coverage shall provide that the insurer shall give thirty (30) days prior written notice to Client prior to cancellation. Upon written request, copies of such policies or certificates thereof shall be delivered to Client by Servco. Servco shall cause each of its subcontractors to carry insurance of the types and amounts necessary to cover risks inherent in the work of that subcontractor. When requested by Client, Servco shall furnish Client with certificates of insurance evidencing coverage for each subcontractor.

13.    Alternative Dispute Resolution Procedures

13.1    Any dispute, controversy or claim arising out of or relating to this Agreement, (except in connection with the exercise of any termination rights under Sections 5.2(a) and 5.3(a), which termination rights shall be absolute and unfettered), or the breach or performance hereof, including, but not limited to, any disputes concerning the interpretation of the terms and provisions hereof, shall be resolved through the use of the following procedures:

13.2    Continued Performance. Each Party agrees to continue to perform its obligations under this Agreement while any dispute is being resolved, unless and until: (a) such obligations are terminated by the termination or expiration of this Agreement; or (b) otherwise ordered pursuant to a ruling by the arbitration panel, or the issuance of a temporary restraining order or other preliminary injunctive relief.

14.    General

14.1    Compliance with Laws. Each Party shall at all times comply with all applicable laws, statutes, rules, regulations and ordinances, including without limitation those governing wages, hours, desegregation, employment discrimination, health and safety. Servco has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Servco shall work with any governmental authorities that regulate Client in an open and cooperative way and shall provide access to its information and procedures as may be necessary for Client to respond to regulatory inquiries and other legally required requests for information.

14.2    Representations. Each Party represents and warrants that (a) it is a business entity duly organized, validly existing, and in good standing in the jurisdiction in which it is formed, and that it has the full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement; (b) it has no outstanding agreement that is in conflict with any of the provisions of this Agreement or that would preclude it from complying with the provisions hereof; (c) it is in material compliance with all applicable laws, regulations and rules of any government body or other competent authority relating to its business and performance under this Agreement; and (d) it has the financial capability to meet its obligations under this Agreement.

14.3    Force Majeure. Except for the payment of money by Client for Services delivered by Servco prior to the occurrence of a Force Majeure, if the performance of any obligation under this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, earthquake, riot, fire, judicial or governmental action, labor disputes, act of God, war, and, to the extent not caused by Servco, any communication lines failures or blackout/failure of the Internet, or any other causes or third party disruptions beyond the reasonable control of either Party (each a “Force Majeure”), then that Party will be excused from such obligation to the extent that it is prevented, hindered, delayed or otherwise made impracticable by a Force Majeure; provided that, (i) as soon as practicable, the affected Party notifies the other Party of the Force Majeure and the measures it will undertake to reduce the impact thereof, and uses commercially reasonably efforts to resume the performance of its obligations hereunder as soon as the source and effect of such Force Majeure event is eliminated.

14.4    Conflicts; Order of Precedence. In the event of any conflict in this Agreement and in any Exhibit or Statement of Work, between any Exhibits or Statements of Work and a term set forth in another Exhibit; such terms shall be reconciled and harmonized to the extent possible, and consistent with the intent of the Parties, so that no term shall be rendered void, meaningless, or absurd. In the event of an irreconcilable conflict between any such terms, the order of precedence shall be as follows: (1) Statements of Work, which are executed by Servco and Client; (2) Exhibits not constituting a Statement of Work; and (3) this Agreement.

14.5    Assignment; Subcontracting. Except as otherwise provided in this Agreement, neither Party may assign, sublicense, subcontract, delegate or transfer any of its rights or obligations under this Agreement without the express prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed, except that no such consent shall be required for (a) an assignment to an Affiliate, as long as W. Keith Maxwell III, directly or indirectly, has an economic ownership interest and voting interest in such Affiliate in excess of fifty percent (50%) at the time of such assignment and is reasonably expected to maintain such ownership interest for at least six months following any such assignment, or (b) a merger, acquisition or other similar business combination of Servco or the sale of all or substantially all of Servco’s assets. Any purported transfer or assignment in contravention of this Section 14.5 shall be null and void and of no force and effect. During the six (6) month period following the assignment to a permitted assignee of Servco, such permitted assignee shall notify the Company in writing no later than fifteen (15) days prior to any reduction in either direct or indirect ownership of W. Keith Maxwell III in such assignee below fifty percent (50%). This Agreement shall inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. No assignment or subcontracting by a Party shall relieve such Party from its obligations pursuant to this Agreement unless otherwise specifically agreed to in writing by the non‑assigning/non-sub-contracting Party. Notwithstanding the foregoing, Servco shall have the right from time to time, in its sole and absolute discretion, to augment its workforce as needed in providing the Services to Client consistent with the manner Client previously augmented its workforce from time to time.

14.6    Legal Notices. Any notice permitted or required under this Agreement must be in writing. Any such notice will be delivered as follows: (a) hand delivery; (b) nationally recognized overnight courier (fully prepaid and with delivery confirmation via UPS, the United States Postal Service, FedEx, DHL, or other nationally recognized overnight delivery service); or (c) certified U.S. Mail, postage prepaid, return receipt requested. An unofficial copy may also be transmitted by email. Legal notices shall be effective immediately for notice delivered pursuant to section (a) above. Notices shall be effective two (2) Business Days following the expiration of the date sent for notice delivered pursuant to sections (b) or (c) above. All notices shall be addressed to each Party as set forth below (or to such other address/addressee or telecopy number as either Party may from time to time duly notify the other).

If to Servco, addressed to:

With a copy to:

If to NuDevco, addressed to:

With a copy to:

14.7    Publicity. Neither Party shall make any public statement, press release or other announcement relating to the terms or existence of this Agreement or the business relationship of the Parties or their respective operations and results hereunder, without the prior written consent of the other Party, except as may be required by Client or Servco under applicable law or stock exchange rules and regulations. Only with Client’s written permission, Servco may use Client’s name and the Client Trademarks (name and logo only) to list Client as a client on Servco’s website and in other marketing and informational materials.

14.8    Headings. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.

14.9    Independent Contractors. The relationship of the Parties is that of independent contractors. Except to the extent where Servco is acting as Client’s agent pursuant to the terms and provisions of this Agreement, nothing in this Agreement will be construed as placing the Parties in a relationship as employer and employee, principal and agent, partners, joint ventures or fiduciaries. Neither Party will have the authority to enter into legally binding obligations on behalf of the other Party. Neither Party shall act or represent itself, directly or by implication, as the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

14.10    Amendments and Waivers. This Agreement and any Statement of Work, Attachments or Exhibits hereto may be amended in whole or in part only by written agreement signed by the Parties. The failure of any Party to insist upon strict performance of any of the terms or conditions herein, irrespective of the length of time for which such failure shall continue, shall not be a waiver of that Party’s right to demand strict compliance in the future. The Parties may at any time and from time to time waive in whole or in part the benefit to it of any provision in this Agreement or any default by the other Party, but any waiver on any occasion will be deemed not to be a waiver of that provision thereafter or of any subsequent default or a waiver of any other provision or default. No waiver or consent shall be effective unless in writing and signed by the Party against whom such waiver or consent is asserted.

14.11    Severability. If a court of competent jurisdiction renders any part of this Agreement invalid or otherwise unenforceable, that part will be severed and the remainder of this Agreement will continue in full force and effect, provided that the Parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision, which substitute will be as consistent as possible with the original intent of the Parties.

14.12    Counterparts. This Agreement may be executed in counterparts, each of which shall be considered an original, but all of which taken together shall constitute one and the same instrument, and may be delivered electronically.

14.13    Entire Agreement. This Agreement, including all Exhibits, Statements of Work, and any schedules or appendices attached hereto or thereto, constitutes the entire agreement of the Parties concerning the subject matter hereof and supersedes all prior negotiations, proposals, understandings, and agreements, whether oral or written, with respect to the subject matter hereof.

14.14    No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.15    Survival. Sections 3.1(Fees), 3.2(Expenses), 3.3(Payment), 5.4 (Effect of Termination), 5.5 (Transition Services), 5.6 (Transfer of Assets and Personnel to Client After Termination), Section 7.2(b), 7.2(c) (Audits), Article 8 (Indemnification; Liability); Article 10 (Confidential Information), Article 11 (Governing Law), and any other provisions that by their nature are necessary to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.

14.16    Record Keeping. Servco shall maintain complete and accurate records and supporting documentation for the Services provided hereunder and shall maintain such records for a period of four (4) years after termination. Prior to the expiration of such four (4) year period, Client shall have the right to make copies of such records for its record retention purposes. Should Client fail to request and make copies of such records, after such four (4) year period, Servco shall have the right, but not the obligation, to destroy such materials and records.

14.17    Further Assurances. Each Party agrees to execute such additional documents and instruments and take such additional actions as may be reasonably necessary or as requested by the other Party to give effect to this Agreement and to carry out its provisions.

14.18    Guaranty of Nudevco Retail, LLC. NuDevco hereby guarantees the payment of amounts due from Servco to Client in connection with any obligation or liability hereunder up to a maximum amount of two million dollars ($2,000,000.00). This guaranty is a guaranty of payment and not performance.

“Additional Services” has the meaning set forth in Section 2.2.

“Affiliate” means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a specified Person. A Person shall be deemed to control another Person if such first Person possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of such other Person, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning set forth in the introductory paragraph.

“Approved Bonus Payments” has the meaning set forth in Section 9.2(d).

“Arbitration Notice” has the meaning set forth in Section 13.1(a).

“Assigned Assets” has the meaning set forth in Section 9.1.

“Assigned Contracts” has the meaning set forth in Section 9.1.

“Authorized Users” has the meaning set forth in Section 9.3.

“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in the State of Texas are authorized or obligated to be closed by applicable Laws.

“Client” has the meaning set forth in Section the introductory paragraph.

“Client Data” means all data imported into the Services or generated by the Services that (i) constitutes the personally identifiable information of Client’s Customers including, without limitation, financial information; (ii) Client’s raw ANSI x12 data; or (iii) otherwise contains information regarding Client’s Customers’ usage of, or payment for, electric or gas services.

“Client Intellectual Property” means Client Data, Client Trademarks, Client Work Product, and Client Work Made for Hire.

“Client Trademarks” means the Client’s name and logo trademarks.

“Client Work Made for Hire” means any specifications, design documents, flow charts, software programs (including developed applications), historical data, models, processes procedures and related documentation, reports and other similar work product (collectively, “Developed Materials”), regardless of the medium in which such Developed Materials are presented, that was developed by or on behalf of Client and not assigned to Servco as part of the Assigned Assets. The ownership of any Developed Materials developed by Servco on behalf

of Client shall be addressed in a specific Statement of Work entered into in connection with any such development. If a Statement of Work fails to address the ownership of any such Developed Materials, if such Developed Materials were paid in full by Client, such Developed Materials shall be owned by Client or if such Developed Materials are a part of Client’s existing assets or Client Intellectual Property; otherwise, such Developed Materials shall be owned by Servco.

“Client Work Product” means all Developed Materials that Client develops or causes to be developed on its behalf in which it owns, excluding any such Developed Materials that Servco develops not owned by Client.

“Confidential Information” has the meaning set forth in Section 10.

“Customers” means any utility, transmission/distribution service provider, commercial, industrial or residential entities or Persons to which Client sells or purchases electricity or natural gas or provides electric or natural gas services.

“Damage Penalty” has the meaning set forth in Section 4.3.

“Developed Materials” has the meaning set forth in the definition of Client Work Made for Hire.

“Disclosing Party” has the meaning set forth in Section 10.

“Effective Date” has the meaning set forth in the introductory paragraph.

“Fees” has the meaning set forth in Section 3.1.

“Force Majeure” has the meaning set forth in Section 14.3.

“GAAP” means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination, consistently applied.

“Indemnified Party” has the meaning set forth in Section 7.3.

“Indemnifying Party” has the meaning set forth in Section 7.3.

“Initial Term” has the meaning set forth in Section 5.1.

“Invoice Dispute Notice” has the meaning set forth in Section 3.3.

“Liabilities” has the meaning set forth in Section 8.1.

“Parties” has the meaning set forth in the introductory paragraph.

“Party” has the meaning set forth in the introductory paragraph.

“Penalty Cap” has the meaning set forth in Section 4.2.2(a).

“Penalty Payment” has the meaning set forth in Section 4.2.1.

“Person” means any natural person, corporation, limited partnership, general partnership, limited liability company, joint stock company, joint venture, association, company, estate, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, custodian, trustee-executor, administrator, nominee or entity in a representative capacity and any Governmental Authority.

“Prior Performance” has the meaning set forth in Section 4.6.

“PTO” has the meaning set forth in Section 9.2(a).

“Recipient” has the meaning set forth in Section 10.

“Renewal Terms” has the meaning set forth in Section 5.1.

“Senior Executives” has the meaning set forth in Section 13.1(b).

“Servco” has the meaning set forth in the introductory paragraph.

“Servco Infrastructure” has the meaning set forth in Section 5.6.

“Services” has the meaning set forth in Section 2.1.

“SLAs” has the meaning set forth in Section 4.1.

“Statement of Work” has the meaning set forth in Section 2.2.

“Step-In Notice” has the meaning set forth in Section 6.1.2.

“Submission Date” has the meaning set forth in Section 13.1(b).

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which a majority of the Voting Interests are at the time owned directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof.

“Term” has the meaning set forth in Section 5.1.

“Transition Period” has the meaning set forth in Section 5.5.

“Transition Services” has the meaning set forth in Section 5.5.

“Voting Interests” of any Person as of any date means the equity interests of such Person pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers, general partners or trustees of such Person (regardless of whether, at the time, equity interests of any other class or classes shall have, or might have, voting power by reason of the occurrence of any contingency) or, with

respect to a partnership (whether general or limited), any general partner interest in such partnership.