LICENSING AGREEMENT
between
Accenture LLP
and 
Enron Net Works LLC

Effective as of _____________, 2001
TABLE OF CONTENTS

Page
ARTICLE I
DEFINITIONS	1
1.1	Definitions	1
1.2	Cross References	6
1.3	Rules of Construction	6
ARTICLE II
ENRON DATA FEED	7
2.1	Development, Testing and Acceptance of the Enron Data Feed.	7
2.2	Operation and Modification to the Enron Data Feed.	7
2.3	Provision of Customer-Specific Transaction Data.	8
2.4	Accenture’s Storage of Customer-Specific Transaction Data.	8
2.5	Service Levels Related to the Enron Data Feed.	9
ARTICLE III
LICENSE TO USE DATA AND SOFTWARE	9
3.1	License to Use Customer-Specific Transaction Data.	9
3.2	Restrictions on Accenture’s Use of Customer-Specific Transaction Data.	9
3.3	License to Use SmartClient Software	10
3.4	Enron’s Updates to the SmartClient Software	10
3.5	Additional License Rights.	10
3.6	Limitations of Liability.	10
ARTICLE IV
EXCLUSIVITY; MARKETING	11
4.1	Exclusivity Obligations of Enron.	11
4.2	Accenture’s Marketing of the TSH Services.	12
4.3	Publicity.	12
4.4	No Use of Marks	12
4.5	Strategic Enron Transactions.	12
ARTICLE V
PAYMENTS TERMS	13
5.1	Accenture Payments.	13
5.2	Accenture Payment Terms.	13
5.3	Enron Payment Terms.	14
5.4	Audit Rights.	14
5.5	Taxes	15
ARTICLE VI
PROTECTION OF PROPRIETARY RIGHTS	15
6.1	Confidentiality.	15
6.2	Ownership of the Customer-Specific Transaction Data and the SmartClient Software.	16
6.3	Accenture Operating Data	16
ARTICLE VII
TERM; TERMINATION	17
7.1	Term	17
7.2	Termination by Enron	17
7.3	Termination by Accenture	17
7.4	Termination Disputed	18
7.5	Effect of Termination	18
7.6	Rights Upon Expiration or Termination.	18
7.7	Survival of Certain Provisions	19
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES	19
8.1	Representations and Warranties of Enron	19
8.2	Representations and Warranties of Accenture.	20
ARTICLE IX
INDEMNIFICATION, REMEDIES AND LIABILITY	20
9.1	Infringement Indemnity.	20
9.2	General Indemnification.	21
9.3	Indemnity Procedures	22
9.4	Limitation of Liability.	23
9.5	Exclusion of Certain Damages	23
9.6	Recourse	24
9.7	Acknowledgments and Applicability of Limitations	24
9.8	Offset Right.	24
ARTICLE X
OTHER PROVISIONS	25
10.1	Worldwide Licenses	25
10.2	Expenses of the Parties	25
10.3	Relationship of the Parties	25
10.4	No Third Party Beneficiaries	25
10.5	Cooperation; Consents	25
10.6	Notice	25
10.7	Severability	26
10.8	Assignment	26
10.9	Remedies Cumulative	27
10.10	Amendment	27
10.11	Waiver		27
10.12	Entire Agreement	27
10.13	Arbitration	27
10.14	Injunctive Relief	29
10.15	Governing Law.	29
10.16	Counterparts	29

Exhibits:
	A	EnronOnline Transaction Data Feed – External Interface Document
	B	Readable Transaction Terms
	C	Calculation of Standard Transaction Fee
	
Schedules:
	2.5	Service Levels
	5.1	Minimum Annual Payments

LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this “Agreement”), dated as of [________,] 2001 (the “Effective Date”), is entered into by and between Enron Net Works LLC, a Delaware limited liability company (“Enron”), and Accenture LLP, an Illinois partnership (“Accenture”). 
Background Statement
Enron operates a private, Internet-based electronic commodities trading platform throughknown as Enron’s website located at www.enrononline.com Online (as further defined in Section 1.1, the “Enron Platform”), where Enron customers may purchase and sell certain goods and raw materials offered through the Enron Platform.  Accenture desires to acquire the right to receive customer-specific data from Enron relating to transactions consummatedresiding on the Enron Platform and the exclusive right (subject to certain exceptions) to redistribute such customer-specific data to Enron customers who consent to such disclosure on a “real-time” basis through a transaction support hub (“TSH”) to be developed, built, operated, owned and maintained by Accenture.  Accenture also desires to use Enron’s SmartClient Software to receive the customer-specific data.  Through its TSH, Accenture will then re-format the data into a format that can be readily received by the Enron Customer, and Accenture will provide that data to such customer through its TSH Services.  Enron and Accenture wish to enter into this Agreement to consummate the foregoing, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, mutual promises and covenants set forth herein and for other good and valuable consideration, the Partiesreceipt and sufficiency of which are acknowledged, the parties hereby agree as follows:
ARTICLE I	
DEFINITIONS
1.1	Definitions.  In addition to the capitalized terms defined elsewhere in this Agreement, the following capitalized terms shall have the following meanings when used in this Agreement:
“Accenture Customer Agreement” means the agreement between Accenture and each AccentureQualified Customer, pursuant to which Accenture agrees to provide such customer with TSH Services.  
“Accenture Operational Failure” means any failure of any aspect of the Accenture Systems (whether with respect to technology, personnel, or otherwise), which could reasonably be expected to have a material adverse affect on the Enron Platform, its business or operations, or upon any Enron Customer, and with respect to which Enron provides to Accenture written notice and Accenture fails to cure such failure within thirty (30) days of receipt of such notice.
“Accenture Regulatory Event” means (a) any event brought about solely as a result of the execution or(whether or not related to this Agreement, including the performance by Accenture of itsEnron’s obligations hereunder) the result or effect of which is that any of Accenture, its Affiliates, their respective officers, directors, or employees, Accenture’s TSH, or any of their respective businesses: (i) becomes subject to regulation under the Commodities Exchange Act, as amended; (ii) becomes subject to regulation by the Commodities Futures Trading Commission; or (iii) becomes subject to any regulatory proceeding, investigation, action, inquiry or review; and such event (whether described in subparagraphs (i), (ii), or (iii)) could reasonably be expected to have a material adverse effect on Accenture or its Affiliates; or (b) an Enron Regulatory Event, the result or effect of which could reasonably be expected to have a material adverse effect on Accenture or its Affiliates.
“Accenture Systems” means the technology platform under the control of Accenture, an Affiliate of Accenture or a third party contractor retained by Accenture or its Affiliate, on which Accenture’s TSH is operated.
“Affiliate” shall mean, with respect to any person or entityPerson, (a) any person or entityPerson that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such person or entityPerson or (b) any other entity in which such person or entityPerson, or any person or entityPerson that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such person or entityPerson, serves as the general partner, managing member or in a similar capacity; and with respect to Accenture, in addition to the foregoingAccenture rights, all partnerships, firms, corporations, entities, individuals,benefits and their successors and assigns, wherever located, which together comprise the Accenture Worldwide Organization whether by virtue of their member firm interfirm agreements with Accenture Partners Societe Cooperative /or any successor thereto acting to coordinate the business of such entities or by virtue of a contract with or ownership, direct or indirect, by a member firm or otherwise beingobligations under control, directly or indirectly, of one or more member firms and which are thereby deemed part of the Accenture Worldwide Organization.  For purposes of this definition, “control”Agreement may be assigned or novated (includingas appropriate) to Accenture Ltd. or to any Accenture Affiliate.  "Affiliate" means any entity, with correlative meaningswhether incorporated or not, the terms “that is controlled by” or controls Accenture Ltd, and “under common "control with”), as used with respect to any Person," means the possessionability, whether directly or indirectly, of the power to direct or cause the directionaffairs of the management or policiesanother by means of such Person, whether through the ownership of voting securities, by contract or otherwise.  
“Bankruptcy Event” means, with respect to a specified Person,
(a)	such Person (i) makes a general assignment for the benefit of creditors; (ii) files a voluntary bankruptcy petition; (iii) is declared insolvent in any federal or state bankruptcy or insolvency proceedings; (iv) files a petition or answer seeking for such Person a reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any law; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against such Person in a proceeding of the type described in subclauses (i) through (iv) of this clause (a); or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Person’s assets; or
(b)	a proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any law has been commenced against or with respect to such Person, and one hundred twenty (120) days have expired without dismissal thereof or with respect to which, without such Person’s consent or acquiescence, a trustee, receiver, or liquidator of such Person or of all or any substantial part of such Person’s assets has been appointed and ninety (90) days have expired without the appointment’s having been vacated or stayed, or ninety (90) days have expired after the date of expiration of a stay, if the appointment has not previously been vacated.
“Change of Control” means any transaction or event in which any “person” or “group” (within the meaning of those terms under Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (as amended, the “Exchange Act”)) directly or indirectly (i) acquires or possesses beneficial ownership (as defined in Rule 13d-3 of the Exchange Act) of more than 50% of the outstanding voting power of a party; (ii) acquires or possesses the right or power to appoint a majority of the members of the Board of Directors of a party; (iii) acquires all or substantially all of the assets of a party; or (iv) executes an agreement to do any of (i) through (iii) above.  In addition, in the case of Enron, “Change of Control” shall mean a transaction or series of related transactions the result of which is that Enron or any of its Affiliates no longer owns a majority interest in, or otherwise operationally controls, the Enron Platform.
“Contract Year” means the twelve month period beginning on the first day of the month immediately following the Enron Data Feed ConnectionTSH Launch Date, and each subsequent twelve month period commencing on the anniversary of the Enron Data Feed ConnectionTSH Launch Date during the Term.
“Customer-Specific Transaction Data” means the transaction data that Enron makesis available to aan Enron Customer through the Enron Platform relating to that Enron Customer’s transactions consummatedresiding on the Enron Platform in the format described in the External Interface Document, which transaction data contains Readable Transaction Terms that are readable by Accenture through use of the SmartClient Software.  All transaction data generated by transactions that are not consummated through the Enron Platform, or that are not consummated with Enron through the Enron Platform, are specifically excluded from Customer-Specific Transaction Data.
“Enron Customer” means any customer of Enron who has authority to access those portions of the Enron Platform that require a user identification number and password.  
“Enron Data Feed” means the technology platform, including the Enron Server and SmartClient Software, by and through which Enron will deliver the Customer-Specific Transaction Data to Accenture for use by Accenture in accordance with this Agreement, as further described in the External Interface Document.
“Enron Data Feed Connection Date” means the date that the Enron Data Feed is completed, tested and ready for use in conjunction with the use by Accenture pursuant to this Agreement.  
“Enron Data Feed Connection Deadline” means the date that is one hundred and twenty (120) days followingfour month anniversary of the Effective Date.  
“Enron Operational Failure” means any failure of any aspect of the Enron Data Feed or the Enron Platform (whether with respect to technology, personnel, or otherwise) of, which could reasonably be expected to have a material adverse affect on Accenture’s TSH, its business or operations or any Qualified Customer, and with respect to which Accenture provides to Enron written notice of such failure and Enron fails to cure such failure within thirty (30) days, and that could reasonably be expected to have a material adverse affect on Accenture’s TSH.  
“Enron Platform” means the proprietary electronic trading facility controlled by Enron through the website currently located at www.enrononline.comor operated by Enron (or any of its Affiliates) and known as Enron Online (or any successor thereto), and any other electronic trading facility owned and operated by Enron or its Affiliates through which Enron or its Affiliates purchase or sell any product, service or commodity that Enron purchases or sells through EnronOnline at any time during the Term, but the term “Enron Platform” shall not include any electronic trading platform or facility controlled by Enron or its Affiliates and formed or acquired after the Effective Date through which Enron or its Affiliates purchase or sell products, services or, commodities or conduct other businesses that are substantially dissimilar to products, services or commodities purchased or sold through or businessbusinesses conducted upon EnronOnline on or through Enron Online, in all respects during the Effective DateTerm.
“Enron Regulatory Event” means (a) any event (whether or not related to this Agreement, including the performance of Enron’s obligations hereunder) the result or effect of which is that any of Enron, its Affiliates, their respective officers, directors, or employees, the Enron Platform, or any of their respective businesses: (i) becomes subject to regulation under the Commodities Exchange Act, as amended; (ii) becomes subject to regulation by the Commodities Futures Trading Commission; or (iii) becomes subject to any regulatory proceeding, investigation, action, inquiry or review; and such event (whether described in subparagraphs (i), (ii), or (iii)) could reasonably be expected to have a material adverse effect on Enron or its Affiliates, or (b) an Accenture Regulatory Event, the result or effect of which could reasonably be expected to have a material adverse effect on Enron or its Affiliates.
“External Interface Document” means the EnronOnline Transaction Data Feed – External Interface Document attached hereto as Exhibit A, as amended from time to time in accordance with Section 2.2(b).
“Gross TSH Revenues” shall mean any and all ofonly the feesaggregate (includingx) anymonthly maintenance fees and (y) the transaction fees) paid or payable by each Qualified Customer to Accenture or the TSH related toin consideration for such Qualified Customer’s receipt of TSH Services; provided, that under no circumstances shall Gross TSH Revenues include (i) expense reimbursement from Qualified Customers, (ii) revenues related to the sale or lease of equipment or hardware, or the license or sublicense of Accenture-owned software or third party software, to Qualified Customers for their use in connection with the Customer-Specific Transaction Data, (iii) the amount of any sale, use, excise, value-added, services, consumption or other tax that is assessed on the services provided by Accenture, or the provision of the Customer-Specific Transaction Data to Customers, (iv) interest income on receivables or related to the financing of any Qualified Customer contract with Accenture, (v) the licensing of separately identified and priced software that is developed, licensed or acquired by Accenture which Accenture may combine for distribution purposes with the Customer-Specific Transaction Data, and (vi) revenues attributable to consulting, outsourcing, systems integration or other services performed for Qualified Customers that are notor otherwise in connection with the TSH Services and (vii) any amounts resulting from extraordinary or non-recurring gains from sales of hardware or software assets outside of the ordinary course of business.  In addition, Gross TSH Revenues shall include the transaction fee component referenced in clause (y) above only to the extent the transaction data underlying such fee can be routed exclusively to a Qualified Customer through the Enron Platform.
“Intellectual Property Rights” means worldwide statutory and common law rights associated solely with (i) works of authorship including copyrights, copyright applications, copyright registrations and “moral rights”; (ii) the protection of trade and industrial secrets, confidential information and know-how, methodologies and processes related to either party’s products and/or services; (iii) trademarks, trade names, service marks, trade dress and logos related to either party’s products and/or services; (iv) rights of privacy or publicity; (v) any rights associated with patents and patent applications, and (vi) any divisions, continuations, renewals, and re-issuances of any of the foregoing rights in any medium, whether now existing or acquired in the future; and (vii) in the case of any of the foregoing, any other proprietary rights inherent therein and/or appurtenant thereto.
“Mid/Back Office Services” means [discuss appropriate definition].
“Minimum Annual Payment” means, with respect to a Contract Year, the amount set forth opposite such Contract Year in Schedule 5.1.
“Operational Copy” shall have the meaning set forth in Section 3.3.
“Person” means any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, estate, unincorporated organization or government or any agency, instrumentality or political subdivision thereof, or any other form of entity.
“Price Posting Arrangement” means any arrangement or relationship whereby Enron transmits electronic bid and ask pricing information to a third party for the purpose of generating Enron purchase or sale transactions based upon such pricing information. 
“Qualified Customer” means any Enron Customer who (i) enters into aan Accenture Customer Agreement to purchase TSH Services from Accenture, and (ii) provides Enron with a Consent and Release, but only as long as both (i) and (ii) are in full force and effect and have not expired, terminated, or been withdrawn.  
“Readable Transaction Terms” means those terms relating to any transaction consummated on the Enron Platform that will be decoded by the SmartClient Software.
““Real-time Basis” means, with respect to any data transmission relating to a transaction, the initiation by the Enron Platform of a Customer-Specific Data transmission to the Accenture Systems of a data transmission in respect of such transaction in the same instant that the data transmission to the Enron Customer makingconfirming such transaction is initiated to the Enron Customer executing such transaction.
“Service Levels” mean those service levels set forth in Schedule 2.5, as modified from time to time in accordance with the terms of this Agreement.
“SmartClient Software” means the software application process installed and run on the Accenture Systems as part of the Enron Data Feed, and any updates, improvements, or new versions that Enron makes generally available to its licensees for no additional license fee.  
“Software Derivatives” means any correction, update, enhancement, improvement, translation, new release or other modification that is considered a “derivative work” (as that term is defined in the United States Copyright Act, 17 U.S.C. §101) of the SmartClient Software.
“Standard Transaction Fee” means the minimum amount owed by Accenture to Enron in respect of each Qualified Customer for the provision of the TSH Services, which fee shall be calculated and adjusted as set forth on Exhibit C.  
““TSH Launch Date” means the first date on which a Qualified Customer receives Customer-Specific Transaction Data via the TSH Services are commercially available to Enron Customers.
“TSH Services” means the service whereby Accenture will use its TSH to reformat and transmit Customer-Specific Transaction Data to the Qualified Customer to whom such data relates, in a manner that is electronically readable by that Qualified Customer, on a “real-time” basis.  TSH Services shall not include any Mid/Back Office Services.
1.2	Cross References.  Each of the following terms shall have the meaning assigned thereto in the Section of this Agreement set forth opposite such term:
AAA	10.13(c)
Accenture Indemnitee	9.2(b)
Accenture Works	6.2(b)
Actions	10.13(a)
Arbitration Notice	10.13(b)
Confidential Information	6.1(a)
Consent and Release	2.3(a)
Effective Date	Opening Paragraph
Enron Indemnitee	9.2(a)
ETA	2.3(c)
Enron Payments	4.1(a)(i)
Infringement Claims	9.1(a)
Non-Referring Party	10.13(b)
Performing Party	5.4(a)
Referring Party	10.13(b)
Requesting Party	5.4(a)
Term	7.1
TSH	Background Statement

1.3	Rules of Construction.  The following provisions shall be applied wherever appropriate herein:
(a)	“herein,” “hereby,” “hereunder,” “hereof” and other equivalent words shall refer to this Agreement as an entirety and not solely to the particular portion of this Agreement in which any such word is used;
(b)	“including” means including without limitation;
(c)	all definitions set forth herein shall be deemed applicable whether the words defined are used herein in the singular or the plural;
(d)	wherever used herein, any pronoun or pronouns shall be deemed to include both the singular and plural and to cover all genders;
(e)	neither this Agreement nor any other agreement, document or instrument referred to herein or executed and delivered in connection herewith shall be construed against either party as the principal draftsperson hereof or thereof;
(f)	the section headings and table of contents appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement;
(g)	any references herein to a particular Section, Article, Exhibit or Schedule means a Section or Article of, or an Exhibit or Schedule to, this Agreement unless another agreement is specified; and
(h)	the Exhibits and Schedules attached hereto are incorporated herein by reference and shall be considered part of this Agreement.
ARTICLE II	
ENRON DATA FEED
2.1	Development, Testing and Acceptance of the Enron Data Feed.
(a)	Within the first one hundred and twenty (120) days followingBefore the four-month anniversary of the Effective Date, Enron will [use commercially reasonable efforts] to design, develop and test production-ready the Enron Data Feed that will be used to deliver the Customer-Specific Transaction Data to Accenture.  The Enron Data Feed shall be designed, developed, tested and operated so as to ensure, toupon mutual agreement between Enron’s satisfaction and Accenture, adequate security for the Enron Platform and the Customer-Specific Transaction Data transmitted to Accenture through the Enron Data Feed.   In connection with the development of the Enron Data Feed, Accenture shall provide Enron with access to Accenture personnel and information as Enron may reasonably request to assist Enron in the development of the Enron Data Feed.  If Accenture notifies Enron reasonably determines that the TSH Launch Date will be delayed through no fault of Enron, Enron may delay its development of the Enron Data Feed to be consistent with the projected TSH Launch Date; provided, however, that upon such delay, the termination right set forth in Sections 7.2(a) and 7.3(a) may not be exercised by either party.
(b)	Enron will provide the SmartClient Software and all the Enron Data Feed-associated design documentation, data formats and specifications to Accenture in accordance with Section 3.3 on the Effective Date.  Enron will provide sample data from the Enron Data Feed to Accenture for testing at least thirty (30)90 days prior to the Enron Data Feed Connection Date.  Enron shall deliver to Accenture a fully-tested Enron Data Feed for the purpose of conducting final system tests at least 60 days prior to the Enron Data Feed Connection Date.  It will be Accenture’s sole responsibility to make all modifications to the Accenture Systems and/or its TSH to receive and properly read the data transmitted by Enron through the Enron Data Feed.  Upon Accenture’s reasonable request, during the 3090-day testing period, Enron will provide Accenture with such assistance and cooperation as may be necessary to help Accenture confirm the data format transmitted by Enron through the Enron Data Feed and as Accenture may otherwise require so that Accenture can establish the interoperability of the Enron Data Feed with the Accenture Systems.
2.2	Operation and Modification to the Enron Data Feed.
(a)	Enron shall initially deliver the Customer-Specific Transaction Data to Accenture through the Enron Data Feed in electronic form in a file transfer protocol using an Extensible Markup Language (XML) format selected by Enron, as further described in the External Interface Document.
(b)	Enron may modify the Enron Data Feed (and any of the SmartClient Software related thereto) and the External Interface Document at any time and will endeavor to provide Accenture withupon at least ten (10)15 days advance written notice to Accenture of any such changes; provided that if Accenture, upon receipt of such notice, notifies Enron that such change could reasonably be anticipated to materially and adversely effectaffect the Accenture Systems or Accenture’s TSH, then Enron shall delay such change for at least 30 additional days and provide Accenture with at least thirty (30) days prior notice and an opportunity to discuss any proposed or scheduled modifications and measures that Accenture can take to avoid such material adverse effect.  Accenture shall run the most current version of the SmartClient Software provided to it by Enron, and shall implement any updates to the SmartClient Software on the Accenture Systems within [thirty (30)] days of receipt of the updates from Enron.  Accenture is solely responsible for making any changes to the Accenture Systems and/or Accenture’s TSH to accommodate any such changes; however, upon Accenture’s reasonable request, during the 30-day noticedelay period, Enron will provide Accenture with such assistance and cooperation as may be necessary to help Accenture to avoid the material adverse effect and confirm the data format transmitted by Enron through the Enron Data Feed and as Accenture may otherwise request so that Accenture can establish the interoperability of the Enron Data Feed with the Accenture Systems.  Such assistance shall include, without limitation, a mutual system test designed to migrate all changes simultaneously and joint efforts to minimize interruption of the TSH Services.
(c)	Enron will not be responsible for making any changes to the Enron Platform or Enron Data Feed to accommodate any modifications, upgrades or improvements of the Accenture Systems or Accenture’s TSH.  Notwithstanding the foregoing, Enron agrees to consider in good faith any Accenture input regarding the Enron Platform or Enron Data Feed.
2.3	Provision of Customer-Specific Transaction Data.
(a)	Accenture shall enter into an Accenture Customer Agreement with each Enron Customer who intends to use the TSH Services, which agreement will include a consent and release in a form to be established by Enron and reasonably satisfactory to Accenture (“Consent and Release”), to be duly executed by an authorized representative of such Enron Customer and delivered to Enron as a condition precedent to Enron’s transmission of Customer-Specific Transaction Data to Accenture related to such Enron Customer.  Accenture shall ensure that there is no conflict between the Accenture Customer Agreement and the corresponding Consent and Release.  Enron is solely responsible for ensuring the Consent and Release is effective and adequately covers the subject matter thereof.  Prior to the execution of the Accenture Customer Agreement, Enron may conduct such additional due diligence as it deems necessary to confirm the authority of the representative of the Enron Customer executing the Consent and Release prior to transmitting any such data to Accenture.  Enron and Accenture will cooperate with each other to develop a sign up process that will facilitate the Enron Customers’ access to the TSH Services.
(b)	Within [five] days after Enron'’s receipt of a Consent and Release duly executed by an authorized representative of an Enron Customer and otherwise satisfactory to Enron, provided the Enron Data Feed ConnectionTSH Launch Date has occurred, and subject to the other terms and conditions of this Agreement, Enron will providecommence providing to Accenture on a Real-time Basis Customer-Specific Transaction Data through the Enron Data Feed for such Qualified CustomersCustomer, for the sole purpose of permitting Accenture to provide TSH Services.
(c)	Accenture acknowledges that the Electronic Transfer Agreement between Enron and each Enron Customer (“ETA”) shall remain in full force and effect (subject to the Consent and Release), without modification, and shall continue to govern, notwithstanding Accenture’s provision of Customer-Specific Transaction Data pursuant to any Accenture Customer Agreement.  Accenture shall not represent to any Enron Customer, nor shall any Accenture Customer Agreement provide, that the ETA is being amended or supercededsuperseded in any way (subject to the Consent and Release).  Enron shall ensure that there is no conflict between the Accenture Customer Agreement, the ETA and the corresponding Consent and Release.  
2.4	Accenture’s Storage of Customer-Specific Transaction Data.
(a)	Accenture agrees that it will not permitSubject to Section 3.5(a), Accenture shall take commercially reasonable precautions designed to prevent any unauthorized Person to directly or indirectly access any of the Customer-Specific Transaction Data otherresiding thanin the Qualified Customer to whom such data relates, except as set forth in Section 3.5(a)Accenture Systems. 
(b)	Accenture will be responsible for storing all Customer-Specific Transaction Data on the Accenture Systems in accordanceAccenture shall comply with commercially reasonable security standards that are consistent with industry standards and reasonably acceptable to Enron which govern the storage of the Customer-Specific Transaction Data on the Accenture Systems.  
(c)	Enron will not provide anyagrees to provide historic Customer-Specific Transaction Data upon reasonable request by a Qualified Customer (for only that data, even if Accenture loses data integrity on relating to such Qualified Customer) or the Accenture SystemsTSH. 
2.5	Service Levels Related to the Enron Data Feed.  
(a)	Enron shall transmit the relevant Customer-Specific Transaction Data to Accenture in accordance with the Service Levels.  The initial Service Levels are set forth in Schedule 2.5.  
(b)	Enron assumes no liability of any kind with respect to any interruption of service, impairment of function, or erroneous results in the operation of Accenture’s TSH caused by any data processing of any third-party software or hardwareperformed by the Accenture Systems, or by any software, hardware, programming, technology or data supplied by Accenture.
(c)	Subject to Section 2.5, Enron does not warrant that the Enron Data Feed is error free, or that Accenture’s use of the Enron Data Feed will be uninterrupted.  Subject to Section 2.5, Enron does not warrant that the Customer-Specific Transaction Data will be received by Accenture within any given time period following transmission by Enron.
(d)	If Enron fails to meet any Service Level, then Enron shall (i) promptly perform a root-cause analysis to identify the cause of such failure, (ii) provide a report to Accenture describing the results of such analysis and (iii) take such action as may be necessary or appropriate to avoid such failure in the future and begin to meet the Service Level as promptly as practicable.  In addition, Enron shall provide the corresponding Service Level Credit against the immediately succeeding Accenture Payment in accordance with Schedule 2.5  If any Service Level Credit remains outstanding upon the expiration or termination of this Agreement, Enron shall pay Accenture such remaining amount in cash within 30 days after such expiration or termination.  
ARTICLE III	
LICENSE TO USE DATA AND SOFTWARE
3.1	License to Use Customer-Specific Transaction Data.  
(a)	Enron hereby grants to Accenture a worldwide, non-assignable (except as set forth in Section 10.8) right and license during the Term to provide TSH Services to Qualified Customers (including, without limitation, to access, use, modify, process and transmit Customer-Specific Transaction Data to Qualified Customers or their designated service provider), and solely in those limited circumstances and solely for those purposes.  Accenture shall not alter any portion of the Customer-Specific Transaction Data other than formatting. 
(b)	Enron hereby grants Accenture the exclusive right to offer the TSH Services to all existing and future Enron Customers for the Term.
3.2	Restrictions on Accenture’s Use of Customer-Specific Transaction Data. 
(a)	Enron reserves all of its rights in the Customer-Specific Transaction Data, and Accenture shall have no rights to or in such data except as expressly set forth in this Agreement.
(b)	Accenture agrees and covenants that it will not aggregate, redistribute, sell, transfer, publish or broadcast any Customer-Specific Transaction Data to any Person (including Enron Customers or Accenture customers) or for any purpose, exceptother than to the Qualified Customer to whom such data relates and only through Accenture’s TSH as expressly and specifically permitted in this Agreement.
3.3	License to Use SmartClient Software
.  Upon the terms and subject to the conditions of this Agreement, Enron hereby grants to Accenture, and Accenture accepts, a non-assignable (except as permitted under Section 10.8), worldwide, perpetual, non-exclusive license to use, reproduce, modify, enhance, process, manipulate, , copy and create derivative works from the SmartClient Software, including the source code, and any updates or revisions thereto for any purpose related to the operation of Accenture’s TSH, except for the purpose of receiving the Customer-Specific Transaction Data from the Enron Data Feed.  Accenture shall have the right to use, butmay not to(i) modify in any way,copy of the SmartClient Software, to the extent that the SmartClient Software is being used for the purpose of receiving theto receive Customer- Specific Transaction Data from the Enron Data Feed (the “Operational Copy”) without the prior written consent of Enron and (ii) run any other version other than the most current version of the SmartClient Software provided by Enron in accordance with Section 3.4 as the Operational Copy.
3.4	Enron’s Updates to the SmartClient Software.  	From time to time Enron mayshall provide Accenture, for no additional consideration, with updates or revisions to the SmartClient Software in accordance with the provisions of Section 2.2.3.3.  If any such update or revision potentially and materially impacts the operation or performance of the TSH, Accenture and Enron shall mutually review the potential impact and assist the other to implement the update or revision with minimal interruption to the TSH Service.  Accenture must implement all suchother updates or revisions to the Operational Copy within the periods specified in Section 2.2(b)30 days from receipt of such update or revision; otherwise all of Enron’s warranties and obligations relating to the Enron Data Feed set forth in this Agreement, including any Service Level obligations, shall be void (to the extent affected by modification and enhancements included in such updates or revisions).
3.5	Additional License Rights.
(a)	Accenture shall have the right to provide access to the Customer-Specific Transaction Data and the SmartClient Software to all consultants, agents, representatives and contractors of Accenture subject to the following terms and conditions:  (i) each of said consultants, agents, representatives and/or contractors must be subject to a written confidentiality agreement under which it agrees to hold the Customer-Specific Transaction Data and/or the SmartClient Software (as applicable) in confidence under terms substantially similar to the confidentiality terms set forth in Section 6.1, and such agreement remains in effect; (ii) each such party’s access is solely to support Accenture’s use and operation of its TSH or to provide TSH Services to Qualified Customers; and (iii) Accenture agrees to be responsible and liable for any misuse or disclosure of any of the Customer-Specific Transaction Data and/or the SmartClient Software by such third parties in violation of this Agreement.  
(b)	Accenture may, without the consent of Enron, grant a nonexclusive, nontransferable sublicense of its rights under this Agreement to one or more of its Affiliates on the same terms and conditions, and restrictions as set forth herein, but only for so long as such Person is an Affiliate of Accenture.  Accenture will be responsible for any breach of the terms, conditions or restrictions by such Affiliate.  Only Accenture will contact Enron relating to any matter arising under this Agreement.
3.6	Limitations of Liability.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ENRON MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SMARTCLIENT SOFTWARE, AND ACCENTURE ACCEPTS THE SMARTCLIENT SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. FURTHER, ENRON DOES NOT WARRANT RESULTS OF USE OR THAT THE SMARTCLIENT SOFTWARE IS BUG FREE OR THAT THE USE OF THE SMARTCLIENT SOFTWARE WILL BE UNINTERRUPTED.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL ENRON BE LIABLE FOR ANY USE OF THE SMARTCLIENT SOFTWARE BY ACCENTURE.  
ARTICLE IV	
EXCLUSIVITY; MARKETING
4.1	Exclusivity Obligations of Enron.
(a)	During the Term, Enron will not provide Customer-Specific Transaction Data to any Enron Affiliate, third party (other than Accenture) or to any Enron Customer on a Real-Time Basis or in electronic format, except:
(i)	Enron can provide Customer-Specific Transaction Data on a Real-Time Basis to any Enron Customer who ishas elected not to be a Qualified Customer, subject to the following  revenue sharing arrangements:  any revenues received by Enron for any such service may be retained by Enron, and on a quarterly basis (in arrears) Enron will pay Accenture 70% of the Standard Transaction Feegreater of (x) the transaction revenues generated by Enron or (y) mutually agreed upon transaction fees, in each case exclusive of mutually agreed upon costs for such services less Enron’s cost to performprocess such servicestransaction data (“Enron Payments”); such.  Such amounts shall be excluded from the calculation of Gross TSH Revenues.
(ii)	Enron can provide Customer-Specific Transaction Data to itsEnron customersCustomers in other formats and reports, in accordance with Enron’s customary practices or otherwise in the ordinary course of its business, as long as the data is not transmitted to the customers on a Real-Time Basis or in a form that is electronically readable by a customer.  Notwithstanding the foregoing, Enron may provide Microsoft Excel downloads to Enron Customers in accordance with its customary business practices as of the Effective Date during the transition period measured from the Effective Date until the TSH Launch Date.  After such time, Enron shall discontinue the provision of all electronically readable formats to Enron Customers.
(iii)	Enron can provide Customer-Specific Transaction Data to Kiodex, Inc., in accordance with the Co-Marketing Agreement between Kiodex, Inc. and Enron dated as of March 28, 2001, as amended from time to time.  No such amendments thereto providing for, or relating to, services or activities competitive with the TSH Services shall be entered into without the prior written consent of Accenture.  Extensions of the original or amended agreement shall be excluded from the operation of this subparagraph (iii).
(iv)	Enron can provide Customer-Specific Transaction Data to Enron, Enron Corp., and any of their respective Affiliates without regard to any restrictions under this Agreement. so long as Enron’s provision, and such other Persons’ use of, Customer-Specific Transaction Data is not in any way related to or enables services competitive with the TSH Services.  [Treatment of Enron Affiliates to be determined.]
(v)	Enron can provide Customer-Specific Transaction Data in accordance with the Enron’s agreements with HoustonStreet and TrueQuote, as such agreements may be amended from time to time.  No such amendments relating thereto providing for, or relating to, services or activities competitive with the TSH Services shall be entered into without the prior written consent of Accenture.  Extensions of the original or amended agreements shall be excluded from the operation of this subparagraph (v).
(vi)	Enron can provide Customer-Specific Transaction Data to any Enron Customer to the extent that it is legally obligated to do so under any applicable law, regulation or order.   upon 30 days prior written notice to Accenture.    
(b)	Neither Enron nor its Affiliates will not license or otherwise grant access to the SmartClient Software to any third party forunless such third party is expressly prohibited from utilizing the purpose of establishingSmartClient Software to establish or operating a TSHoperate an entity or service offering that, directly or indirectly, provides services that are competitive with the TSH Services.  From time to time and upon Accenture’s reasonable request, Enron, or its Affiliate, as applicable, shall make available to Accenture’s designated representatives or agents all copies of such SmartClient license, access or use agreements then in effect for review to ensure compliance with this Section 4.1(b).
4.2	Accenture’s Marketing of the TSH Services.
(a)	Accenture will use its commercially reasonable efforts to promote its TSH and the provision of the TSH Services to Enron Customers.
(a)	(b) [Enron will provide Accenture with Enron’s top fifty Enron electronic trading customersa list of Enron Customers ranked according to mutually agreed-upon categories (such categories to include, without limitation, ranges of volumes) and will update that list each quartermonth, if and only to the extent such disclosure is permitted by the applicable Enron policies relating to customer privacy then in effect.  If such policies prevent the release of any such customer information, Enron agrees to amend any such policies as soon as commercially practicable following the Effective Date to enable Accenture to receive such information.  In no event shall any Customer-Specific Transaction Data be provided to Accenture, either individual transactions or aggregate data, for marketing purposes.]  [Still under review]
(b)	(c) Accenture may use Enron as a reference and may indicate to others that Accenture is Enron’s exclusive third party provider of TSH Services.  
(c)	(d) Enron shall cooperate to support and assist Accenture in its marketing activities.  , including, without limitation, facilitating contact between Accenture and Enron Customers. 
4.3	Publicity. 
(a)	Enron and Accenture shall advise and confer with each other prior to the issuance of any marketing or promotional materials, press releases, or public announcements or statements concerning this Agreement or the transactions contemplated herein.  Neither party shall make any public disclosure (including but not limited to marketing or promotional materials or press releases)release with respect to this Agreement or the transactions contemplated herein, unless the other party agrees on the text and timing of such publicpress disclosurerelease. 
(b)	Prior to the TSH Launch Date, Accenture may issue a press release in a form mutually agreed to by the parties relating to Accenture’s provision of Customer-Specific Transaction Data under this Agreement, subject to Enron’s prior review and approval (which shall not be unreasonably withheld or delayed) of the timing and wording of such release.
4.4	No Use of Marks(a)	.  Neither party shall useEnron hereby grants to Accenture a right to use within the other partyscope of this Agreement, Enron’s name, trade names, and trademarks, or service marks withoutincluding the logos and any names used to describe the Enron Platform (the “Marks”); provided, however, that Enron shall review and approve all materials using the Marks prior writtento permissiondistribution of any such other party andmaterial by Accenture; provided, with such permissionfurther, only in accordance with the owning party’s guidelines for suchthat (i) Accenture may use in effectEnron as a reference and may indicate to others that Enron is owner and operator of the Enron Platform and (ii) subject to such quality standards as Enron may establish from time to time, Accenture may reference Enron and Enron the trade name in Accenture marketing and media releases as reasonably determined by Accenture in its sole discretion.  Each party agrees that this Agreement does not confer any right on Accenture to grant sublicenses or assign the Marks.  It is Enron’s intent to cooperate with Accenture in Accenture’s marketing activities, and Enron shall act reasonably in providing the consent required in the foregoing sentence.  [Under consideration.]
4.5	Strategic Enron Transactions.  
(a)	During the three month period following the first day of the first Contract Year, neither Enron nor any of its Affiliates shall enter into any agreement with any multilateral electronic trading platform that permits that platform to capture Customer-Specific Transaction Data and make Customer-Specific Transaction Data available to Enron Customers on a Real-Time Basis, unless Accenture otherwise consents to the relationship or transaction pursuant to a binding transaction data routing agreement between Accenture and such platform.
(a)	(b) After the expiration of the three month period referred to in Section 4.5(a), Enron andDuring the Term, Enron or any of its Affiliates may not enter into an agreement with any third party, multilateral electronic trading platform that permits that platform to provide services competitivePrice Posting Arrangement with the TSH Services; provided that atany Person other than in accordance with this Section 4.5.  At least thirty (30) days prior to entering into such an agreementa Price Posting Arrangement, Enron shall have advisedadvise such platformPerson of Accenture’s “preferred provider status” for TSH Services, and shall have advisedadvise Accenture in writing of its intent to enter into such ana Price Posting Arrangement and provide a copy of the agreement underlying such Price Posting Arrangement.  In addition, 
(i)	Enron shall use its commercially reasonable efforts to exclude any rights or privileges with respect to the provision of TSH ServicesCustomer-Specific Transaction Data from the proposed agreementPrice Posting Arrangement; or 
(ii)	If such exclusion does not occur, Enron shall facilitate negotiation of a binding transaction data routing agreement between Accenture and the proposed platformPerson and such agreement shall be consummated between Accenture and such Person prior to the effective date of the applicable Price Posting Arrangement.  
(b)	(c) If Enron elects to enter into an agreement for the provision of services competitive with the TSH Services with a Person who is not an Affiliate of Enron Price Posting Arrangement absent the compliance with either Section 4.5(each a “Data Access Agreement”)(i) or (ii), and as Accenture’s sole and exclusive remedy for Enron’s failure to comply with the provisions of Section 4.5(ba), then for the first such Data Access AgreementPrice Posting Arrangement entered into by Enron, Accenture shall be relieved of the Minimum Annual Payment obligations set forth in Section 5.1(b).Sections 5.1, 5.2 and Schedule 5.1.  For each additional Data Access AgreementPrice Posting Arrangement that Enron enters into with like non-compliance, the applicable royalty percentage applicable under Section 5.1(a) will be reduced in a 5% increment (e.g., if the royalty percentage were 30%, the application of this Section would reduce that applicable percentage to 25% of the Gross TSH Revenues)..  
(c)	(d) Notwithstanding the foregoing provisions of Section 4.5 to the contrary, Enron’s agreements with TrueQuote and Houston Street shall not be considered to be Data Access AgreementsPrice Posting Arrangements, and neither those agreements, nor any amendment thereto that does not materially enhance the other party’s abilityapproved by Accenture pursuant to provide services competitive with the TSH ServicesSections 4.1(a)(iii) or (v), shall be considered asdeemed to be a Data Access AgreementPrice Posting Arrangement under this Section 4.54.5.  Extensions of such agreements shall be expressly excluded from the operation of this subparagraph (c).   
ARTICLE V	

ARTICLE V	
PAYMENTS TERMS
5.1	Accenture Payments.(a)	Accenture shall pay to Enron, on a quarterly basis, 30.0% (or such lower percentage that may be established pursuant to Section 4.5(c)) of the Gross TSH Revenues, which amount shall in no event be less than the Standard Transaction Fees payable for that quarter.PAYMENT TERMS
5.1	Accenture Initial Payments.  For the first Contract Year, (a)	(b) In the event that for any Contract Year the amounts paid by Accenture pursuant to the foregoing are less than the Minimum Annual Payment applicable to that Contract Year, then Accenture willshall pay to Enron the excessgreater of (i) the Minimum Annual Payment applicableor (ii) 30.0% (or such lower percentage that may be established pursuant to that Contract Year over the amounts paid by Accenture for such Contract Year based onSection 4.5(b)) of the Gross TSH Revenues or Standard Transaction Feesapplicable to such Contract Year (the “Accenture Payment”).  Payments for all subsequent Contract Years shall be calculated as set forth in Section 5.2.  
5.2	Accenture Payment Terms. 
(a)	Accenture shall remit the amounts owed Enron under Section 5.1 for the first Contract Year within [30] days following the expiration of such Contract Year.  For the remainder of the Term, Accenture shall pay to Enron, on a quarterly basis, one-fourth of the Minimum Annual Payment for the applicable Contract Year.
(b)	For any Contract Year following the first Contract Year, on an annual basis, Accenture will true up in order to pay Enron the greater of (i) the cumulative Minimum Annual Payment measured from the TSH Launch Date to the end of the applicable contract year or (ii) 30% (or the lower percentage referenced above) of the cumulative Gross TSH Revenues generated for the same period.
(c)	(a) All amounts payable by Accenture pursuant to paragraph (a) above following the first Contract Year shall be due and payable by Accenture to Enron within thirty ([30)] days following the expiration of the applicable fiscal quarter.  With each payment, Accenture will provide Enron will a full accounting ofwith reasonable documentation supporting the Gross TSH Revenues applicable to that quarter, together will any reconciliation or corrections applicable to prior quarters.  Within forty-five (45) days following the end of each Contract Year, Accenture will provide Enron with (i) a complete report of Gross TSH Revenues for that Contract Year and (ii) any payments required by paragraph (b) above.
(d)	(b) Any amounts owed by Accenture to Enron that are not paid when due will bear interest until paid at a rate equal to the lesser of 1% per month or the maximum interest rate allowed by applicable law.
(e)	(c) All amounts to be paid to Enron under this Agreement shall be paid in U.S. dollars.
(f)	(d) Accenture shall maintain accurate records and supporting documentation, in reasonable detail, to evidence the amount of the Gross TSH Revenues, as the case may be.  
5.3	Enron Payment Terms.  
(a)	All payments due by Enron to Accenture pursuant to this Agreement shall be due [quarterly].  Such payments shall first be credited against the amounts due by Accenture in   the Contract Year in which such Enron Payment accrued.  If the amount due by Enron for a particular Contract Year exceeds the amounts due by Accenture, then such excess shall be due within thirty (30) days after the end of the applicable Contract Year.
(b)	Any amounts owed by Enron to Accenture that are not paid when due will bear interest until paid at a rate equal to the lesser of 1% per month or the maximum interest rate allowed by applicable law.
(c)	All amounts to be paid to Accenture under this Agreement shall be paid in U.S. dollars.
(d)	Enron shall maintain accurate records and supporting documentation, in reasonable detail, to evidence the amount of the Enron Payments that may become payable pursuant to this Agreement, including records supporting the calculation of revenues referenced in Section [__].
5.4	Audit Rights. 
(a)	Upon the request of either party from time to time (the “Requesting Party”), the other Partyparty (the “Performing Party”) shall cause its independent auditors to prepare and deliver a representation letter to the Requesting Party specifying (i) in the case of Accenture, the Gross TSH Revenues recognized by Accenture or (ii) in the case of Enron, the amount of revenues comprising the Enron Payments for a particular calendar quarter or year.  Each party shall be required to deliver no more than one representation letter with respect to any calendar year.  The Requesting Party will reimburse the Performing Party for the reasonable fees and expenses of the Performing Party’s auditors incurred by the Performing Party in connection with the preparation and delivery of such representation letters.  
(b)	Upon the request of either party from time to time (also referred to as the Requesting Party) the other Party (also referred to as the Performing Party) shall permit the Requesting Party to conduct (i) if the Requesting Party is Enron, an operational audit of the relevant components of the TSH Services or (ii) if the Requesting Party is Accenture, an operational audit of the relevant components of the Enron Data Feed.  Such operational audit may be carried out by the Requesting Party or by a third party consultant designated in writing by the Requesting Party (provided that such consultant may not be a competitor of the Performing Party).
(b)	(c) The Performing Party shall provide such independent auditors, third party consultants or other Requesting Party representatives, as the Requesting Party may from time to time designate in writing, with reasonable access during normal business hours to audit the Performing Party’s records evidencing the amount of payments payable pursuant to this Agreement, or to review the relevant operational components, as relevant.  The Requesting Party may audit such Performing Party records or operations only to the extent necessary to confirm that the Performing Party has properly calculated the amounts of payment payable pursuant to this Agreement, or to investigate the Performing Party’s default, as relevant.  Such audits may be carried out only after the Requesting Party has provided the Performing Party at least 30 days’ prior written notice.  Any such audits shall be conducted in a manner that will minimize the inconvenience to the Performing Party’s business and operations and that will maintain the confidentiality of the Performing Party’s records.  Any auditors and other Requesting Party representatives will execute and deliver such confidentiality and non-disclosure agreements and adhere to such other customary confidentiality and security requirements as the Performing Party may reasonably request in connection with such audits.  The Performing Party shall provide such auditors and Requesting Party representatives with routine assistance in connection with such audits.  The Parties will use reasonable efforts to minimize the number of audits to be conductedparties may each conduct a maximum of one audit in any one calendar year.  The Performing Party shall bear all audit costs; provided that if more that one financial audit and one operational audit are conducted in any calendar year, the Requesting Party shall reimburse the Performing Party for any costs and expenses incurred in connection therewith. 
5.5	Taxes.  Unless Accenture provides Enron with a valid resale certificate (or any other exemption certificate or information reasonably requested by Enron), Accenture shall be responsible for any sales, use, value-added and other taxes and duties (if any) payable by Accenture on the Customer-Specific Transaction Data where the tax is imposed on Accenture’s and Customers’ use of such Customer-Specific Transaction Data under this Agreement, provided that Accenture shall not be responsible for any taxes based on Enron’s net income or gross receipts, or any of Enron’s corporate franchise taxes.  The Partiesparties shall use commercially reasonable efforts to cooperate with each other to enable each to more accurately determine its own tax liability and to minimize such liability to the extent legally permissible. [Subject to review and comment by Accenture tax advisors.]
ARTICLE VI	
PROTECTION OF PROPRIETARY RIGHTS
6.1	Confidentiality.  
(a)	Each of Enron and Accenture acknowledges and agrees that it may disclose to the other Partyparty information that it considers proprietary and confidential.  Confidential Information includes (i) the Customer-Specific Transaction Data, and (ii) other information relating to each parityparty’s business operations, services or technical knowledge that has been designated as such, either in writing or orally as confirmed in writing no later than [__] days following disclosure (the “Confidential Information”).  Notwithstanding the foregoing, Confidential Information specifically excludes any information that (i) is or becomes generally available to the public other than as a result of improper disclosure by the receiving party, in breach of this Section 6.1, (ii) becomes available to the receiving party from a third party who received such information on a non-confidential basis, (iii) was known by the receiving party at the time of its receipt and was not the subject of a pre-existing confidentiality obligation, or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information or (v) as Enron and Accenture may agree from time to time.
(b)	All Confidential Information communicated to the receiving party by the disclosing party in connection with the negotiation, preparation and performance of this Agreement shall be received in confidence, used only for purposes of this Agreement and protected in the same manner as the receiving party protects its own Confidential Information, but in any event not less than a reasonable manner.  
(c)	The receiving party shall not disclose any Confidential Information to a third party (except as otherwise expressly permitted under this Agreement) except (i) as may be necessary by reason of legal, accounting or regulatory requirements applicable to the receiving party or disclosing party, or (ii) in respect of a validly initiated judicial or administrative process, including pursuant to a subpoena or request for documents, provided that if either Partyparty receives a subpoena, request for documents, or other judicial or administrative process requiring the disclosure of Confidential Information of the disclosing party, then the receiving party shall promptly notify the disclosing party of the receipt of process, and, except to the extent that the receiving party deems necessary to avoid suffering civil or criminal sanctions, permit the disclosing party an opportunity to respond to such process.
(d)	The Partiesparties may disclose to third parties the existence and general nature of this Agreement, but shall not disclose the terms, including the amount of the Minimum Annual Payments or Standard Transaction Fees payable hereunder.
6.2	Ownership of the Customer-Specific Transaction Data and the SmartClient Software.  
(a)	TheAs between the parties, the Customer-Specific Transaction Data and the SmartClient Software shall be and remain the property of Enron, and Accenture shall have no rights or interests therein except as contemplated under this Agreement.  
(b)	Subject to Enron’s rights in the SmartClient Software and associated Intellectual Property rights, Accenture will be the sole and exclusive owner of all Software Derivatives developed and made by or on behalf of Accenture (“Accenture Works”) and Enron shall have no rights or interests therein.  
(c)	Enron will be the sole and exclusive owner of all Software Derivatives relating to the SmartClient Software developed and made by Enron.  
6.3	Accenture Operating Data.  Any data regarding the operations of Accenture or its Customers provided by Accenture to Enron pursuant to this Agreement shall be deemed to be Confidential Information and shall remain the property of Accenture.  Upon any expiration or termination of this Agreement for any reason, Enron shall promptly return such data to Accenture in a form reasonably requested by Accenture or, if Accenture so elects, destroy it.  
ARTICLE VII	
TERM; TERMINATION
7.1	Term.  The term of this Agreement (“Term”) will commence on the Effective Date and, unless earlier terminated in accordance with Section 7.2 or 7.3 will continue until the five-year anniversary of the Enron Data Feed ConnectionTSH Launch Date.  This Agreement will expire on such fifth anniversary unless extended by the mutual agreement of the parties, as evidenced by a written amendment to this Agreement.  
7.2	Termination by Enron.  Upon the occurrence of any ofEnron may, by giving 30 days prior written notice to Accenture, terminate this Agreement only under the following circumstances:
(a)	The Enron Data Feed Connection Date shall not have occurred on or before the Enron Data Feed Connection Deadline.
(a)	(b) The TSH Launch Date shall not have occurred on or before the first anniversary of the Enron Data Feed Connection Date, or such other date as may be mutually agreed by the parties;
(b)	(c) Accenture defaults in the payment when due of any amount due hereunder, which default is not cured within [15]30 days after written notice specifying the default is given to Accenture.
(c)	(d) A Bankruptcy Event shall have occurred with respect to Accenture;
(d)	(e) An Accenture Operational Failure shall have occurred;
(f)	A Change of Control shall have occurred with respect to Accenture;
(e)	(g) An Enron Regulatory Event shall have occurred that shall not have been suspended, terminated, remedied or otherwise resolved to the reasonable satisfaction of Enron within [five (5)] days of its occurrence; 
(f)	(h) Accenture shall be in material breach of any provision of this Agreement, and such breach has not been cured within [sixty (60)]30 days after Accenture’s receipt of a written notice of such default; 
then Enron may, upon [thirty (30)] days prior written notice to Accenture, terminate this Agreement, and/or seek damages or other relief to which it may be entitled in law or under equity; providedProvided, however, that pending (by virtue of any cure or notice period that is provided inunder this Agreement) any such termination of this Agreement, upon written notice to Accenture, Enron may not suspend, disable, deactivate and/or remove the Enron Data Feed during any applicable cure period, unless consented to the extent necessaryby Accenture pursuant to avoid any material adverse effect on the Enron Platform, its business or operations, or upon any Enron Customerwritten notice.
7.3	Termination by Accenture.  Accenture may, by giving written notice to Enron, terminate this Agreement only under the following circumstances:
(a)	The Enron Data Feed Connection Date shall not have occurred on or before the Enron Data Feed Connection Deadline; 
(b)	Enron defaults in the payment when due of any amount due by Enron hereunder, which default is not cured within [15]30 days after written notice specifying the default is delivered to Enron;
(c)	A Bankruptcy Event occurs with respect to Enron;
(d)	A Accenture Regulatory Event shall have occurred that shall not have been suspended, terminated, remedied or otherwise resolved to the reasonable satisfaction of Accenture within [five (5)] days of Enron’s receipt of written notice of the occurrence of such event; 
(e)	A Change of Control shall have occurred with respect to Enron;
(f)	Enron shall be in defaultmaterial breach of any provision of this Agreement, and such defaultbreach has not been cured within [sixty (60)]30 days after Enron’s receipt of a written notice of such defaultbreach; or
(g)	Enron terminates or indefinitelyotherwise suspends transactions on the Enron Platform ;
(h)	A majority of Qualified Customers terminate or materially default on the ETA’s between such Qualified Customers and Enron; 
(i)	An Enron Operational Failure shall have occurred; or 
(j)	Enron becomes legally obligated to provide Customer-Specific Transaction Data to more than two Qualified Customers pursuant to any applicable law, regulation or order in any one Contract Year.
(k)	(h) Enron fails to meet the Service Levels [Need to define what would constitute a “service level termination event” after we see the service levels];
7.4	Termination Disputed.  [Notwithstanding any provision to the contrary in this Agreement, no termination pursuant to Section [___________] which is disputed in good faith by either Partyparty pursuant to Section 10.13 shall be effective except upon the final resolution of the dispute pursuant to Section 10.13; provided, however, that in connection with any termination notice delivered pursuant to Section 7.2(cb) or 7.3(b) relating to an alleged underpayment of an amount owed hereunder, to the extent that a final resolution of the dispute requires that one Partyparty pay the other Partyparty an additional amount in respect of such amounts owed, if such additional amount is paid, together with any interest thereon, within ten days after notice of such final resolution is received by the parties, then this Agreement shall not terminate as a result of such termination notice or final resolution but shall continue to be in full force and effect in accordance with its terms, and such termination notice or final resolution shall be deemed null and void.] [Discuss.]
7.5	Effect of Termination.  Enron acknowledges that, upon receipt of Customer-Specific Transaction Data from Accenture or from Enron, each Qualified Customer or Enron Customer shall have the unqualified right to use and manipulate such data, regardless of whether this Agreement remains in effect.   
7.6	Rights Upon Expiration or Termination.  
(a)	Upon any expiration or termination of this Agreement by Accenture  pursuant to Section 7.3 or by Enron pursuant to Section 7.2 (other than SectionsSection 7.2(b) or (he)), (i) if the amounts paid under Section 5.1 for the then-current Contract Year are less than the Minimum Annual Payment for that Contract Year, Accenture shall pay Enron the difference between the amount already paid pursuant to Section 5.1 for that Contract Year and an amount equal to the product of (x) the Minimum Annual Payment specified on Schedule 5.1 for the applicable Contract Year divided by 365, multiplied by (y) the elapsed number of days in the then current Contract Year through the effective date of such expiration or termination and (ii) Enron shall pay Accenture all Enron Payments accrued and unpaid through the effective date of such expiration or termination.
(b)	Upon any termination of this Agreement by Enron [pursuant to Sections 7.2(b) or (h),] Accenture shall pay, as liquidated damages, the Minimum Annual Payments specified on Schedule 5.1 for any remaining Contract Years.
(b)	(c) Upon any expiration or termination of this Agreement and subject to the provisions of this Agreement, (i) Accenture shall discontinue use of the Enron Data Feed and (ii) each Partyparty shall promptly return to the other Partyparty or, at the request of the other Partyparty, destroy all Confidential Information in such Partyparty’s possession.  
(c)	(d) Upon any expiration or termination of this Agreement, neither Accenture nor any Qualified Customer shall be obligated to return any Customer-Specific Transaction Data received during the term of this AgreementTerm.  
7.7	Survival of Certain Provisions.  The provisions of Articles VI, IX, and X (other than Section 10.1), the perpetual licenses referenced in Sections 3.3 and 3.5, Sections  7.5 and 7.6, and Article V to the extent required by Sections 7.5 and 7.6(a), shall survive expiration of any termination of this Agreement for any reason.  
ARTICLE VIII	
REPRESENTATIONS AND WARRANTIES
8.1	Representations and Warranties of Enron.  Enron hereby represents and warrants to Accenture that:
(a)	Enron is the sole and exclusive owner of the SmartClient Software and has the right to grant the license under 3.3.     The SmartClient Software shall be free and clear of all liens and encumbrances, and Accenture shall be entitled to use the SmartClient Software in accordance with this Agreement without disturbance.  The foregoing representations shall not be deemed to cover any Software Derivatives.  The SmartClient Software comprising the Operational Copy shall conform to the specifications and documentation provided by Enron to Accenture. 
(b)	The execution and delivery of this Agreement by Enron and the performance of this Agreement by Enron does not and will not conflict with, or constitute a breach of, any instrument or agreement binding on Enron.
(c)	Upon each transmission of the Customer-Specific Transaction Data to Accenture for Qualified Customers, assuming the validity of the Customer’s consent to release its data to Accenture, (i) Enron will have all rights to such Customer-Specific Transaction Data necessary to give effect to the license contained in Section 3.1, and (ii) the performance of this Agreement by Enron does not and will not conflict with, or constitute a breach of, any instrument or agreement binding on Enron or to which any such Customer-Specific Transaction Data is subject.
(d)	To its knowledge, theThe use by Accenture of the SmartClient Software and the Customer-Specific Transaction Data in accordance with the terms of this Agreement does not and will not violate or infringe any Intellectual Property rights of any third party; provided, however, that this representation shall not be deemed to cover any AccentureDerivative Works.
(e)	Neither the Customer-Specific Transaction Data nor the SmartClient Software contains nor will it contain, at the time of delivery to Accenture, any disability virus, self-help code, program dependency feature or other device or software routine (including any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus” or other computer software routines) or hardware components designed to permit unauthorized access to, disable (whether through the passage of time or under the control of a Person other than Accenture), erase or otherwise harm or interrupt the continued usage of the Accenture systems receiving the Customer-Specific Transaction Data or using the SmartClient Software, other than devices or features for which Enron will provide to Accenture “keys” or other access codes that eliminate completely the effect of any such devices or features; provided, however, that this representation shall not be deemed to cover any components of AccentureDerivative Works.
(f)	The ReadableCustomer-Specific Transaction TermsData represents an accurate and complete account of the relevant transaction on the Enron Platform.  The transmittal of the Customer-Specific Transaction Data from the Enron Platform to the Accenture Systems will not alter or disrupt the data in any way or otherwise harm the accuracy or completeness of such data.
(g)	As of the Effective Date, Enron is not legally obligated to provide Customer-Specific Transaction Data to any Enron Customer under any applicable law, regulation or order.
(h)	(g) Other than contractual relationships between Enron and TrueQuote, Kiodex and Houston Street, no other relationship or arrangement exists whereby Enron Customersany Person, other than an Affiliate of Enron, may access any Customer-Specific Transaction Data on a Real-Time Basis.
(i)	(h) Assuming the propervalid execution of the appropriatea Consent and Release, Enron has the legal authority to extend the rights granted to Accenture under this Agreement, and in the case of the Customer-Specific Transaction Data, upon each transmission of such Customer-Specific Transaction Data from Enron to Accenture. Enron has not made and will not make any commitments or agreements to others inconsistent with or in derogation of such rights.  For each Qualified Customer contracting with Accenture for TSH Services, assuming the propervalid execution of the appropriatea Consent and Release, no contract between Enron and such Qualified Customer will prohibit use and redistribution of any of the Customer-Specific Transaction Data as contemplated by this Agreement.
8.2	Representations and Warranties of Accenture.
(j)	The Customer-Specific Transaction Data does not and will not contain any data relating to an identified or identifiable individual.
8.2	(a) TheRepresentations and Warranties of Accenture.  Accenture hereby represents and warrants to Enron that the execution and delivery of this Agreement by Accenture and the performance of this Agreement by Accenture does not and will not conflict with, or constitute a breach of, any instrument or agreement binding on Accenture.
[others?]
ARTICLE IX	
INDEMNIFICATION, REMEDIES AND LIABILITY
9.1	Infringement Indemnity. 
(a)	Enron will indemnify, defend and hold harmless Accenture and its Affiliates and Qualified Customers, and their respective officers, directors, employees, agents, successors and assigns, from and against any and all claims, actions, damages, liabilities, costs and expenses (including reasonable attorneyattorneys’s fees and expenses) (collectively “Losses”), arising from any claims, whether based in whole or in part in contract, tort, negligence, statute or otherwise, that any portion of the Customer-Specific Transaction Data or the SmartClient Software infringes or constitutes misappropriation or unlawful disclosure or use of, another Person’s Intellectual Property Rights (collectively, “Infringement Claims”).  
(b)	Enron shall have no liability or obligation to Accenture, Accenture Affiliates or any other Person under paragraph (a) above to the extent the Infringement Claim is based upon (i) the use of the Customer-Specific Transaction Data or the SmartClient Software in connection or in combination with equipment, devices or software not contemplated by the applicable documentation or Enron instructions, (ii) the use of such Customer-Specific Transaction Data or SmartClient Software in a manner not contemplated by the applicable documentation furnished to Accenture, or (iii) modifications of such Customer-Specific Transaction Data or SmartClient Software by Accenture other than updates or modifications made by Accenture at Enron’s direction.  If any component of the SmartClient Software is, or in Enron’s reasonable judgment likely to become, the subject of an Infringement Claim, Enron, at its expense, shall use reasonable efforts to procure for Accenture the right to continue using such component.  Without limiting the provisions of Section 9.1(a), if continued use is not reasonably available in Enron’s reasonable and good faith judgment, Enron shall so notify Accenture, whereupon Accenture may terminate this Agreement pursuant to Section 7.3. 
(c)	Accenture will indemnify, defend and hold harmless Enron and its Affiliates and Customers, and their respective officers, directors, employees, agents, successors and assigns, from and against any and all Losses arising from any claims, whether based in whole or in part in contract, tort, negligence, statute or otherwise, that any portion of the Accenture Works infringes or constitutes misappropriation or unlawful disclosure or use of, another Person’s Intellectual Property Rights.  
(d)	NOTWITHSTANDING ANY PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, THE FOREGOING REMEDIES CONSTITUTE THE PARTIES’ SOLE AND EXCLUSIVE REMEDIES AND EACH PARTY’S ENTIRE LIABILITY, WITH RESPECT TO INFRINGEMENT CLAIMS.
9.2	General Indemnification.
(a)	Accenture shall indemnify and, defend and hold harmless Enron and its Affiliates, Qualified Customers, and their respective officers, directors, employees and, agents, successors and assigns (each, an “Enron Indemnitee”) from and against any third party claims arising from or connected with (a) the breach of any representation or warranty expressly made by Accenture hereunder, (b) the breach of any covenant or agreement made by Accenture hereunder, and (c) the provision of the TSH Services, except for claims which arise directly and solely from or relate directly and solely to data errors verified as Enron data errors, and (d) any Accenture Works or other modification made by Accenture to the SmartClient Softwareextent arising in connection with either breaches in Service Levels or this Agreement by Enron or to Enron data errors; and Accenture shall pay any liabilities, damages and expenses (including reasonable attorneys’ fees) attributable to such claims; provided that Accenture will not be liable for any settlement by Enron without Accenture’s prior written consent, which consent shall not be unreasonably withheld or delayed.  
(b)	Enron shall indemnify and, defend and hold harmless Accenture and its Affiliates, Qualified Customers, and their respective officers, directors, employees and, agents, successors and assigns (each, a “Accenture Indemnitee”) from and against any third party claims arising from or connected with (a) the breach of any representation or warranty expressly made by Enron hereunder, or (b) the breach of any covenant or agreement made by Enron hereunder, except for(c) claims which arise directly and solely from or relate directly and solely to breachesdata errors verified as Enron data errors, (d) violations of Accenture’s obligations under this Agreementany U.S. international data privacy law or fall withinregulation by virtue of transmission of the Customer-Specific Transaction Data to the Accenture Systems or (e) damages caused to Qualified Customer’s indemnification obligations under this Agreementsystems through a breach of Section 8.1(e), and Enron shall pay any liabilities, damages and expenses (including reasonable attorneys’ fees) attributable to any such claims; provided that Enron will not be liable for any settlement by Accenture without Enron’s prior written consent, which consent shall not be unreasonably withheld or delayed.  
9.3	Indemnity ProceduresIndemnity Procedures.  Each party will provide prompt written notice of any claim for which it is seeking indemnification to the indemnifying party.   The indemnifying party shall have control over the defense of the claim, except that the indemnified party may participate in such defense with counsel at its own expense.  The indemnified party will provide the indemnifying party will such assistance, information, and authority as the indemnifying party may reasonably request.
[Alternative procedure to consider:].  The following procedures shall apply with respect to indemnification for third party claims arising in connection with this Agreement:
(a)	Promptly after receipt by a Person entitled to indemnification hereunder (an “Indemnitee”) of written notice of the assertion or the commencement of any claim, demand, action, cause of action or other proceeding by a third party, whether by legal process or otherwise (a “Claim”), with respect to any matter within the scope of Section 9.1 or 9.2, the Indemnitee shall give written notice thereof (the “Notice”) to the party from whom indemnification is sought pursuant hereto (the “Indemnitor”) and shall thereafter keep the Indemnitor reasonably informed with respect thereto; provided, however, that the failure of the Indemnitee to give the Indemnitor prompt written notice as provided herein shall not relieve the Indemnitor of its obligations hereunder unless such failure results in a default judgment, the expiration of the time to answer a complaint or material prejudice to Indemnitor’s defense of such Claim.  In case any such Claim is brought against any Indemnitee, the Indemnitor will be entitled to assume the defense thereof, by written notice of its intention to the Indemnitee within 30 days after receipt of the Notice, with counsel reasonably satisfactory to the Indemnitee at the Indemnitor’s own expense.  If the Indemnitor assumes the defense of such Claim, it shall not settle such Claim without the prior written consent of the Indemnitee (which shall not be unreasonably withheld or delayed).  Notwithstanding the assumption by the Indemnitor of the defense of any Claim as provided in this Section 9.3, the Indemnitee shall be permitted to join in the defense of such Claim and to employ counsel at its own expense.
(b)	If the Indemnitor fails to notify the Indemnitee of its desire to assume the defense of any such Claim within the prescribed period of time, or notifies the Indemnitee that Indemnitor will not assume the defense of any such Claim, then the Indemnitee shall assume the defense of any such Claim, in which event it may do so in such manner as it may deem appropriate, provided that it shall not settle any Claim that would give rise to the Indemnitor’s liability under Section 9.1 or 9.2 without the Indemnitor’s prior written consent (which shall not be unreasonably withheld or delayed).  The Indemnitor shall be permitted to join in the defense of such Claim and to employ counsel at its own expense.
(c)	The Indemnitee shall provide reasonable assistance to the Indemnitor (at the Indemnitor’s expense), including reasonable assistance from the Indemnitor’s employees, agents, independent contractors and Affiliates, as applicable.
9.4	Limitation of Liability.  
(a)	ACCENTURE LIMITATION.  IF ACCENTURE SHALL BE LIABLE TO ENRON FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF SUCH PARTY), THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST ACCENTURE WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED $__ MILLION.  The dollar limit described in this Section 9.4(a) shall not apply to the liability of Accenture to the extent such liability results from Accenture’s breach of its payment obligations pursuant to Section 5.1 and 9.2(a). [Discuss.]
(b)	ENRON LIMITATION.  IF ENRON SHALL BE LIABLE TO ACCENTURE FOR ANY MATTER RELATING TO OR ARISING FROM THIS AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF SUCH PARTY), THE AGGREGATE AMOUNT OF DAMAGES RECOVERABLE AGAINST ENRON WITH RESPECT TO ANY AND ALL BREACHES, PERFORMANCE, NONPERFORMANCE, ACTS OR OMISSIONS HEREUNDER WILL NOT EXCEED $____ MILLION.  The dollar limit described in this Section 9.4(b) shall not apply to the liability of Enron to the extent such liability results from Enron’s breach of its (i) payment obligations pursuant to Section 4.1, 4.2, 8.1, 4.1(a)(i), or (ii) obligations under Sections 9.1 or 9.2(b).  [Discuss.]
9.5	Exclusion of Certain Damages.  [EXCEPT IN THE CASE OF ACTIONS BROUGHT PURSUANT TO BREACHES OF (I) OBLIGATIONS OWED BY EITHER PARTY UNDER SECTION 9.1 OR 9.2 OR (II) WARRANTIES UNDER SECTIONSSECTION 8.1(A), (D) (E) OR (G) [DISCUSS]], IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO BUSINESS INTERRUPTION OR LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE OR GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF CLAIM, WHETHER IN CONTRACT, WARRANTY, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE AND REGARDLESS OF THE CAUSE OF SUCH DAMAGES EVEN IF SUCH DAMAGES WERE FORESEEABLE.
9.6	Recourse.  With regard to any claim against Accenture, Enron shall look solely to Accenture and the assets of Accenture in satisfaction of any claim relating to Accenture’s obligations under this Agreement.  In no event shall any Accenture partner be personally liable for any obligation of Accenture under or in connection with this Agreement and no recourse may be had or sought against the assets of an Accenture partner in satisfaction of any such obligation.
9.7	Acknowledgments and Applicability of Limitations.  Each Party acknowledges that the provisions of this Article IX set forth the bargained-for allocation of risk under this Agreement.  The limitations and exclusions contained in this Article IX will apply regardless of (i) the form of action, (ii) any claim or finding that any breach of or default under this Agreement was total or fundamental, (iii) the type of damages, (iv) any claim or finding with respect to the adequacy, failure, purpose or sufficiency of any remedy offered or provided for under this Agreement and (v) whether a Party was informed or  aware of, or otherwise could have anticipated the possibility of, such damages or liability.
9.8	Offset Right.
(a)	In addition to any other remedy each Party may have under this Agreement, each Party shall have the right to offset against any amounts required to be paid to the other Party pursuant to this Agreement and any actual damages and reasonable attorneys’ fees and expenses that each Party actually incurs as a result of a material breach by the other Partyparty under this Agreement.  No later than ten days prior to any such offsetting, the Party claiming an offset right shall provide written notice of its intent to offset (the “Offset Notice”) to the other Partyparty setting forth the amount of such delinquent payments by the other Partyparty (the “Offset Amount”) and describing, in reasonable detail, the relevant invoices or information related to such delinquent payments.  If the other Partyparty has not paid or caused to be paid such delinquent payments within ten days after its receipt of an Offset Notice, then (i) in its next payment to the other Partyparty under this Agreement, the Partyparty claiming the right of offset may offset (on a dollar-for-dollar basis) against amounts due by it hereunder the amount of such delinquent payment that was set forth in such Offset Notice, and shall reflect such offset as a credit for amounts owed by it in the accompanying payment voucher and (ii) the amount of such offset shall be treated as being paid for purposes of determining if the Partyparty claiming the offset right has satisfied its payment obligations for the particular Contract Year.  The rights of offset granted in this Section 9.8(a) shall in no way limit the rights or any other remedies of the Partyparty claiming the right of offset pursuant to this Agreement.
(b)	Either Partyparty may dispute any Offset Amount if, and only if, it delivers to the Partyparty claiming the offset right a reservation of rights or a written notice setting forth in reasonable detail the amount and nature of each disputed matter (each such notice being hereinafter referred to as a “Response Notice”) within 15 days after receiving the Offset Notice relating thereto.  If a Partyparty delivers such a reservation of rights notice with respect to an Offset Amount, it must notify the other Partyparty of any disputed matter relating to such Offset Amount within one year after its receipt of the Offset Notice.  The Partiesparties shall attempt in good faith to resolve any dispute as to any matter set forth in a Response Notice as provided in Section 10.13.  The Partyparty claiming the offset right will deposit into an escrow account any disputed Offset Amounts if the aggregate amount of all Offset Amounts then under dispute pursuant to this Section 9.8 exceeds [$________.]  Such escrow account will be established by the Partyparty claiming the offset right, at that Partyparty’s expense, at a major national bank.  The escrow account will be and will remain the property of the Partyparty claiming the offset right subject to resolution of the dispute pursuant to Section 10.13.  The escrow account will be established pursuant to an escrow agreement that provides that the funds therein, including accrued interest, will be disbursed to Enron or Accenture, as applicable, in accordance with the resolution of the dispute pursuant to Section 10.13 or by mutual agreement of the Partiesparties.
(c)	The exercise in good faith by either Partyparty of such right of offset shall not in any case be construed as a breach of, or a default under this Agreement.  
ARTICLE X	
OTHER PROVISIONS
10.1	Worldwide Licenses.  While Enron has granted Accenture the right to use the Customer-Specific Transaction Data and the SmartClient Software onThe grant of the licenses in Sections 3.1 and 3.3 hereunder is intended to provide to Accenture a worldwide basislicense to (i) to provide TSH Services to Qualified Customers (including, without limitation, to access, use, modify, process and transmit Customer-Specific Transaction Data to Qualified Customers) and (ii) use, reproduce, modify, enhance, process, copy and create derivative works from the SmartClient Software during the Term subject to the terms and conditions set forth herein.  Accordingly, Enron does not warrant or represent that it has or willagrees to cooperate and take all commercially reasonable actions required to obtain all of the necessary consents fromof, nor that it has made or willand to give and make all notices and filings with, any governmental agencies and other Persons necessary to authorize, approve or permit the usegrant of the Customer-Specific Transaction Datalicenses hereunder and/or the SmartClient Software ineffectiveness of such grant with respect to each jurisdiction that Accenture wish to offer TSH Services.  Accenture is solely responsible for obtaining any such consents and making any such notices and files, but Enron shall use its commercially reasonable efforts toreasonably request and take any other actions and do such other things as may be reasonably requested bycommercially reasonable to provide Accenture, at Accenture’s expense and its Customers the intended benefits of the worldwide licenses hereunder.
10.2	Expenses of the Parties.  Except as otherwise provided in this Agreement, each Partyparty shall bear its own costs and expenses incurred in connection with negotiating, preparing and performing this Agreement.
10.3	Relationship of the Parties.  In connection with this Agreement, each Partyparty is an independent contractor and, as such, shall not have any authority to bind or commit the other Partyparty.  Nothing in this Agreement will be deemed or construed to create a joint venture, partnership or agency relationship between the Partiesparties for any purpose. 
10.4	No Third Party Beneficiaries.  Nothing contained in this Agreement is intended to confer upon any Person (other than the Partiesparties hereto and the Indemnitees specifically identified in Article VII) any rights, benefits or remedies of any kind or character whatsoever, and no Person shall be deemed a third party beneficiary under or by reason of this Agreement.  
10.5	Cooperation; Consents.  Each Partyparty will cooperate with the other Partyparty in good faith in the performance of its respective activities contemplated by this Agreement through, among other things, making available, as reasonably requested by the other Partyparty, such management decisions, information, approvals and acceptances in order that the provision of the Services under this Agreement may be accomplished in a proper, timely and efficient manner.  Where agreement, approval, acceptance or consent of either Partyparty is required by any provision of this Agreement, such action will not be unreasonably delayed or withheld.
10.6	Notice.  Wherever under this Agreement one Partyparty is required or permitted to give notice to the other Partyparty, such notice shall be in writing and shall be delivered personally, sent by facsimile transmission, sent by nationally recognized express courier or sent by certified mail (return receipt requested).  Any such notice shall be deemed given when actually received and shall be addressed as follows:
In the case of Enron: 
Enron Net Works LLC
1400 Smith Street
Houston, Texas 77002-7361
Attn:  Compliance Department, Donna Lowry
Telephone:  (713) 853-1939
Facsimile:  (713) 646-4039
In the case of Accenture:
Accenture LLP

Attention:				
Facsimile Number:			

with a copy (which shall not constitute effective notice) to:
Accenture LLP
1661 Page Mill Rd.
Palo Alto, CA  94304
Attention:  General Counsel
Facsimile Number:  (415) 843-2222
Either Partyparty may change its address for notices upon giving written notice of the change to the other Partyparty in the manner provided above.
10.7	Severability.  If any term, condition or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms, conditions and provisions hereof or the whole of this Agreement, but such term, condition or provision will be deemed modified to the extent necessary to render such term, condition or provision enforceable, and the rights and obligations of the Partiesparties will be construed and enforced accordingly, preserving to the fullest permissible extent the Partiesparties’ intent and agreements set forth herein.
10.8	Assignment.  Neither Partyparty shall assign this Agreement or any part hereof or any benefit or interest herein or hereunder without the prior written consent of the other Partyparty, such consent not to be unreasonably withheld; provided, however, that without the prior consent of the other Partyparty, either Partyparty shall have the right to assign this Agreement to any successor to substantially all of the business of such Partyparty.  In the event of any such assignment of this Agreement by either Partyparty, the designated assignee shall assume, in writing (in form and substance reasonably satisfactory to the other Partyparty), the rights and obligations of the assigning Partyparty under this Agreement.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Partiesparties and their respective successors and permitted assigns.
10.9	Remedies Cumulative.  Except as otherwise provided herein, each and all of the rights and remedies provided in this Agreement, and each and all of the rights and remedies allowed at law and in equity in like case, shall be cumulative, and the exercise of one right or remedy shall not be exclusive of the right to exercise or resort to any and all other rights or remedies provided herein or at law or in equity.
10.10	Amendment.  This Agreement may not be modified or amended except by a written instrument executed by or on behalf of each of the Partiesparties to this Agreement.
10.11	Waiver.  The observance of any term of this AgreementTerm may be waived by the Partyparty entitled to enforce such term, but such waiver shall be effective only if it is in writing and signed by the Partyparty entitled to enforce such term and against which such waiver is to be asserted.  No delay or omission on the part of any Partyparty in exercising any right or privilege under this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Partyparty of any right or privilege under this Agreement operate as a waiver of any other right or privilege under this Agreement nor shall any single or partial exercise of any right or privilege preclude any other or further exercise thereof or the exercise of any other right or privilege under this Agreement.
10.12	Entire Agreement.  This Agreement (including the Schedules hereto) constitutes the entire agreement between the Partiesparties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the Partiesparties with respect to the subject matter hereof. 
10.13	Arbitration.  If a dispute between the parties arises out of or in connection with this Agreement or the Warrant, such dispute shall be resolved by binding arbitration under the following provisions.
(a)	Any and all claims, counterclaims, demands, causes of action, disputes, controversies, and other matters in question arising out of or relating to this Agreement or any provision hereof, the alleged breach hereof, or in any way relating to the subject matter of this Agreement or the relationship between the parties created by this Agreement, involving the parties and/or their respective representatives (all of which are referred to herein as “Actions”), even though some or all of such Actions allegedly are extra-contractual in nature, whether such Actions sound in contract, tort, or otherwise, at law or in equity, under state or federal law, whether provided by statute or the common law, for damages or any other relief, shall (except as provided in Section 10.14) be resolved by binding arbitration pursuant to this Agreement and the Federal Arbitration Act.
(b)	A party that wishes to refer a Claim to arbitration (the “Referring Party”) must provide notice (an “Arbitration Notice”) to the other party (the “Non‑Referring Party”) stating:  (i) a general description of the Claim; and (ii) that the Claim is being referred to arbitration under this Section.
(c)	The Referring Party and the Non-Referring Party, shall endeavor to agree promptly on one (1) neutral arbitrator knowledgeable in the Internet industry.  If on or before the 15th day following receipt of the Arbitration Notice they have not so agreed on the arbitrator, then either Party may request the American Arbitration Association (the “AAA”) to designate an impartial arbitrator.  Such designated arbitrator shall take an oath of neutrality.  If the arbitrator resigns, becomes incapacitated, or otherwise refuses or fails to serve or to continue to serve as an arbitrator, then the parties will follow the procedure set forth above to designate a replacement.
(d)	The validity, construction, and interpretation of this Agreement to arbitrate, and all procedural aspects of the arbitration conducted pursuant to this agreement to arbitrate, including but not limited to, the determination of the issues that are subject to arbitration (i.e., arbitrability), the scope of the arbitrable issues, allegations of “fraud in the inducement” to enter into this Agreement or this arbitration provision, allegations of waiver, laches, delay or other defenses to arbitrability, and the rules governing the conduct of the arbitration (including the time for filing an answer, the time for the filing of counterclaims, the times for amending the pleadings, the specificity of the pleadings, the extent and scope of discovery, the issuance of subpoenas, the times for the designation of experts, whether the arbitration is to be stayed pending resolution of related litigation involving third parties not bound by this arbitration agreement, the receipt of evidence, and the like), shall be decided by the arbitrator to the extent not provided for herein and shall be governed by and construed pursuant to the Federal Arbitration Act.  In deciding the substance of the parties’ Actions, the arbitrator shall apply the substantive laws of the State of New York in accordance with this Agreement.  The arbitrator shall not have the authority to award any treble, punitive, special, exemplary, incidental, indirect or consequential damages.  The arbitrator shall not have the authority to modify or amend any term or provision of this Agreement.  The arbitrator shall have the authority to assess the costs and expenses of the arbitration proceeding (including the arbitrators’ fees and expenses and attorneys’ fees and expenses) against either or both parties.  
(e)	The arbitration shall be conducted in New York, New York, or such other place as the parties may agree.  The arbitrator shall set the date, the time, and the place of the hearing, which must commence on or before the 120th day following the designation of the arbitrator.  The arbitration shall be conducted under the procedures set forth in The Commercial Arbitration Rules of the AAA to the extent not inconsistent with the provisions of this Agreement.  The arbitration shall be self-administered by the parties until selection of the arbitrator, and thereafter shall be administered by the arbitrator; provided, if a party believes the process will be enhanced if it is administered by the AAA, such party shall have the right to cause the process to become administered by the AAA by applying to the AAA and, thereafter, the arbitration shall be conducted pursuant to the administration of the AAA.  In determining the extent of discovery, the number and length of depositions, and all other pre-hearing matters, the arbitrator shall endeavor to the extent possible to streamline the proceedings and minimize the time and cost of the proceedings.  There shall be no transcript of the hearing.  The final hearing shall not exceed ten (10) business days, with each party to be granted one-half of the allocated time to present its case to the arbitrator.  All proceedings conducted hereunder and the decision of the arbitrator shall be kept confidential by the parties.
(f)	The arbitrator shall render their award on or before the 15th day following the last session of the hearing fully resolving all Actions that are the subject of the proceeding.  The arbitrator’s ultimate decision after final hearing shall be in writing.  The party against which the award assesses a monetary obligation shall pay that obligation on or before the 30th calendar day following the decision or such other date as the decision may provide.  Any award of the arbitrator shall be consistent with the limitations and terms of this Agreement.  The arbitrator shall certify in their decision that no part of the award includes any amount for treble, punitive, special, exemplary, incidental, consequential or other damages not allowed herein.  The arbitrator’s award may be confirmed in, and judgment upon the award entered by, any federal or state court having jurisdiction over the parties.
(g)	The decisions of the arbitrator shall be final and binding on the parties and non-appealable to the maximum extent permitted by law.
(h)	It is the intent of the parties that the arbitration proceeding shall be conducted expeditiously, without initial recourse to the courts and without interlocutory appeals of the arbitrators’ decisions to the courts.  However, if a party refuses to honor its obligations under this Agreement to arbitrate, the other party may obtain appropriate relief compelling arbitration in any court having jurisdiction over the parties; the order compelling arbitration shall require that the arbitration proceedings take place in New York, New York, as specified above.  The parties may apply to any state or federal court having jurisdiction for orders requiring witnesses to obey subpoenas issued by the arbitrator.  Moreover, any and all of the arbitrator’s orders and decisions may be enforced if necessary by any state or federal court having jurisdiction.  Each party agrees that arbitration pursuant to this Section shall be the exclusive method for resolving all Actions in arbitration and that it will not commence an action or proceeding, except as provided in this Section or in Section 10.14.
10.14	Injunctive Relief.  Each party acknowledges and agrees that great loss and irreparable damage may be suffered by the other party should such party breach or violate any of the terms or provisions of this Agreement relating to the protection of the other Partyparty’s Confidential Information and Intellectual Property Rights.  Therefore, in addition to all other remedies provided at law or in equity and notwithstanding the provisions relating to arbitration hereunder, each party agrees that the other party shall be entitled to seek from a court of competent jurisdiction a temporary restraining order and a preliminary injunction against the other party.  After seeking such temporary relief, all matters (including permanent injunctive relief) shall be decided by the arbitrator pursuant to proceedings under Section 10.13.
10.15	Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflict of laws principles thereof that would cause the application of the laws of a jurisdiction other than the State of New York.

10.16	Counterparts.  This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement binding on all the Partiesparties, notwithstanding that all the Partiesparties are not signatories to the original or the same counterpart.
[Balance of page left intentionally blank; signature page follows.]

IN WITNESS WHEREOF, the Partiesparties hereto have duly executed this Agreement of the Effective Date.
ENRON NET WORKS LLC
By:	
Name:	
Title:	

ACCENTURE LLP
By:	
Name:	
Title:	

SCHEDULE 2.5
SERVICE LEVELS 
[to be developed]

SCHEDULE 5.1
MINIMUM ANNUAL PAYMENTS

Contract Year				Amount
1				$250,000
2				$1,200,000
3				$1,500,000
4				$1,200,000
5				$950,000

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Document 2	pcdocs://DAL02/308148/2 	
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