M-RETS OPERATING SYSTEM
2. Description of Service.
(a) In consideration of the payment of the Fees specified herein, M-RETS hereby grants to User,a revocable, non-exclusive license to use the M-RETS System, subject to the terms and conditions contained herein.
(b) The M-RETS System provides an electronic certificates-based tracking system that reports certain operating Attributes of Renewable electricity generators that (i) are located within the M-RETS Region; (ii) are owned by a utility located within the M-RETS Region; or (iii) have a contract with a utility located within the M-RETS Region to deliver electricity into the M-RETS Region.In addition, the M-RETS System tracks Renewable Resource Credits for the State of Wisconsin.The M-RETS System will compile information regarding the Attributes.The Attributes are unbundled from each megawatt-hour (“MWh”) of Energy produced and recorded onto a Certificate.One Certificate shall be created for each MWh of Energy produced, and each Certificate will be assigned a unique serial number.The data comprising the M-RETS System include (i) generation information from control area settlement data polled from a revenue quality meter or provided to the M-RETS Administrator by Control Area Operators, Qualified Independent Parties and Self-Reporting Generators as described in Section 8 of the M-RETS Operating Procedures; and (ii) static information provided by the User such as fuel source and location.
(c) Any issues that may arise regarding whether an ownership or security interest is created in the transferred Certificates or whether the transferred Certificate is considered a “forward contract” under the United States Bankruptcy Code, or any other issues related thereto, shall be addressed between the transferor and transferee of the Certificate.The M-RETS System will not address any such substantive issues and M-RETS shall not have any liability with respect to any such substantive issues.
3. Authorized User/Declaration of Agency.
(c) If an M-RETS Subscriber wishes to grant a third party agent access to the M-RETS System on its behalf, the Subscriber must designate the level of access to the M-RETS System provided to its authorized Users on Declaration of Agency forms provided by M-RETS.The applicable form shall depend on the level of access Subscriber desires to grant to such Agent (Level 1, Level 2, Level 3, or Level 4). Subscriber understands and agrees that only one legal entity may be granted Level 1 access to an Account, and that accordingly if Subscriber grants Level 1 Account access to an Agent, Subscriber shall not have Level 1 access to that Account unless and until Subscriber revokes the applicable Declaration of Agency.
(d) Subscriber’s designated Agent is authorized to act for Subscriber with respect to all activities with regarding Subscriber’s Attribute data contained in the M-RETS System, including but not limited to creation of Certificates, transferring of Certificates, reviewing reports, making trades of Certificates, receiving bills from M-RETS and paying the Fees due to M-RETS (the “Authorized Rights and Responsibilities”). With respect to the Authorized Rights and Responsibilities, Agent is authorized to communicate and transact with M-RETS as Subscriber’s sole and exclusive agent, and M-RETS is authorized to communicate and transact directly and exclusively with Subscriber’s Agent. With respect to Authorized Rights and Responsibilities, Subscriber will abide by any direction issued by M-RETS to Subscriber’s Agent.
4. Ownership and Use of Data and the M-RETS System.
(b) Except as otherwise provided in the M-RETS Operating Procedures, User acknowledges that once User transmits data to the M-RETS System, such data cannot and will not be deleted, removed, or otherwise expunged or segregated, including in the event a Subscriber terminates its subscription to use the M-RETS System, except in accordance with M-RETS normal operating procedures. M-RETS owns all such data input into the M-RETS System and User’s sole rights to such data are as set forth in M-RETS operating procedures.
(d) User represents and warrants to M-RETS that all information it provides to M-RETS or inputs into the M-RETS System shall be true, complete, and correct to the best of its knowledge, information and belief.
(e) Prohibited Uses.User shall be subject to the following limitations:
(i) User shall not loan, share, publish, republish, copy, reproduce, disclose, transmit, display, sell, license, lease or distribute any portion of the M-RETS System or any data thereon to any third-party, or use the M-RETS System as a basis for a directory or database prepared for commercial sale or distribution; provided, however, nothing shall prohibit internal business use or reporting to state agencies or User’s end use customers;
(ii) User shall not use the M-RETS System in any manner that could damage, disable, overburden, or impair any servers, or the network(s) connected to any M-RETS System server, or interfere with any other party's use and enjoyment of the M-RETS System;
(iii) User shall not remove any copyright, trademark, or other proprietary notices contained in the M-RETS System;
(iv) User shall not disassemble, decode, decompile or otherwise reverse engineer any interfaces or software programs comprising the M-RETS System;
(v) User shall not access, download, transfer or manipulate data and databases comprising the M-RETS System using protocols or interfaces other than those provided as part of the M-RETS System;
(vi) User shall not have access to or make any use of the source code for the M-RETS System; and
(vii) User shall not infringe or misappropriate the M-RETS System or take any action inconsistent with M-RETS’s ownership of and rights in the M-RETS System.
(viii) User shall not, and shall not allow third parties, to record data manually or using automated processes, including but not limited to screen scraping and/or data scraping.
(h) In using the M-RETS Site, User agrees:
• not to disrupt or interfere with the security of, or otherwise abuse, the M-RETS Site, or any services, system resources, Accounts, servers, or networks connected to or accessible through the M-RETS Site or affiliated or linked sites;
• not to upload, post, or otherwise transmit through or on the M-RETS Site any viruses or other harmful, disruptive, or destructive files;
• not to use, frame, or utilize framing techniques to enclose any M-RETS trademark, logo, or other proprietary information (including the images found at the M-RETS Site, the content of any text, or the layout/design of any page or form contained on a page) without M-RETS’s express written consent;
• not to use meta tags or any other “hidden text” utilizing an M-RETS name, trademark, or product name without M-RETS’s express written consent;
• not to “deeplink” to the M-RETS Site without M-RETS’s express written consent;
• not to create or use a false identity on the M-RETS Site;
• not to collect or store personal data about others obtained through the M-RETS System;
• not to attempt to obtain unauthorized access to the M-RETS Site or portions of the M-RETS Site that are restricted from general access;
• not to post any material that is false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person’s privacy, or otherwise in violation of any law; and
• not to post any copyrighted material unless the copyright is owned by User, which such posting shall be deemed consent by User of the publication of such copyrighted material on the M-RETS Site.
In addition, User agrees that it will comply with all applicable local, state, national, and international laws and regulations, including but not limited to United States export restrictions, that relate to its use of or activities on the M-RETS Site.
6. Payments and Taxes.Invoices for Fees will be sent electronically to the User’s designated e-mail address.Each User agrees to maintain a current e-mail address in their M-RETS account.Users shall pay any Fees charged hereunder by wire transfer or other payment form of immediately available funds to the account identified in the invoice from time to time no later than thirty (30) days from the date of the invoice (the “Due Date”), without offset or reduction of any kind.The Fees shall be non-refundable.User will pay all sales, use, value added taxes, and other consumption taxes, personal property taxes and other taxes (other than those based on M-RETS’s net income) related to the use of the M-RETS System unless User furnishes satisfactory proof of exemption.Taxes, if any, are not included in the Fees and will be added to User’s invoices.If not so added, such taxes are the exclusive responsibility of User.
8. Term and Termination.
(b) Termination by M-RETS.
(c) Termination by User. User may terminate use of, the M-RETS System, for any reason, by providing at least thirty (30) days written notice to M-RETS. User’s obligation to pay any and all Fees due hereunder at the time of termination of use or access shall survive any termination of use or access.
(d) Termination Required by Law.M-RETS shall terminate access to, or User shall cease use of, the M-RETS System if required to do so by any statute, regulation or ordinance enacted by a governmental authority having jurisdiction over M-RETS, or by any order or other decision of a court of law or governmental agency, as required by said statute, regulation, ordinance, order or decision.At least sixty (60) days’ notice of said termination of access or cessation of use of the M-RETS System shall be given by the Party terminating the access to, or ceasing the use of, the M-RETS System under this subsection, unless a shorter notice period is required by the applicable statute, regulation, ordinance, order or decision.
(f) Reinstatement. M-RETS, in its sole discretion, may reinstate a User’s access to the M-RETS System after termination by M-RETS for User’s Default, upon M-RETS Inc.’s receipt of User’s full payment of all Fees due prior to the termination.User agrees to pay M-RETS Inc. a reinstatement fee equal to the Fees which would have been due to M-RETS Inc. during the period in which the User’s Account was terminated (“Reinstatement Fee”).The Reinstatement Fee shall be due prior to reinstatement of User’s’ access to the M-RETS System
9. Default; Remedies.
(a) Default.The occurrence of any of the following shall be considered a “Default”:
(ii) User fails to pay any of the Fees or other charges due hereunder in accordance with the procedures set forth in Section 6 above when due.
(iii) User, its employees, agents or contractors alter, tamper with, damage or destroy (1) the M-RETS System or any portion thereof, or (2) the data of other users of the M-RETS System.
(iv) User uses the M-RETS System in any manner that, directly or indirectly, violates any law, rule, code or regulation or aids any unlawful act or undertaking.
(v) All or substantially all of User’s assets are attached or levied under execution (and User does not discharge the same within sixty (60) days thereafter); a petition in bankruptcy, insolvency or for reorganization or arrangement is filed by or against User (and User fails to secure a stay or discharge thereof within sixty (60) days thereafter); User is insolvent and unable to pay its debts as they become due; User makes a general assignment for the benefit of creditors; User takes the benefit of any insolvency action or law; the appointment of a receiver or trustee in bankruptcy for User or its assets if such receivership has not been vacated or set aside within thirty (30) days thereafter; or, dissolution or other failure to exist of User if User is an entity.
(vi) User falsifies or misrepresents any data or other information input into the M-RETS System by User in contravention of Section 4(d).
(vii) User makes any false or inaccurate representations in the Consent attached hereto.
(viii) User violates its confidentiality obligations set forth in Section 11.
(i) User acknowledges that money damages would not adequately compensate M-RETS in the event of a breach by User of its obligations hereunder and that injunctive relief may be essential for M-RETS to adequately protect itself hereunder.Accordingly, User agrees that, in addition to any other remedies available to M-RETS at law or in equity, including but not limited to any monetary damages, M-RETS shall be entitled to seek injunctive relief in the event User is in breach of any covenant or agreement contained herein.
(a) “Confidential Information” includes (i) The M-RETS System, including the selection, arrangement and compilation of data (ii) confidential, market sensitive and trade secret information, and (iii) information provided to the M-RETS System by any User that has been designated in writing by any User to the M-RETS System to be confidential or proprietary.
(b) Confidential Information does not include information which User can establish by written documentation (i) to have been publicly known by User prior to disclosure of such information in the M-RETS System; (ii) to have been received by User at any time from a source, other than the M-RETS System, rightfully having possession of and the right to publicly disclose such information; (iv) to have been independently developed by employees or agents of User without access to or use of such information disclosed in the M-RETS System; (v) to be common technical information or know-how readily available in literature.
(c) If User is required to disclose by force of law, including but not limited to information that must be provided to any governmental entity to confirm compliance with any statute or regulation, administrative proceeding, administrative or court order or discovery, User must promptly notify M-RETS and take such reasonable actions as necessary to ensure that such information is disclosed in as limited a manner possible and subject to a qualified protective order to the extent available
(d) Confidential Information must be held strictly confidential and be used for operation of the M-RETS System and only released through the reporting process or based on an authorized consent for disclosure.
(i) immediately notify M-RETS that User has obtained such access; and
(ii) not disclose, disseminate, copy, or use any such information.
(g) User agrees to notify M-RETS within 48 hours of any security or privacy breach involving Confidential Information of which it becomes aware, and agrees to work with M-RETS to mitigate to the extent possible any damage to M-RETS or its Users resulting from such breach.
12. Limited Warranty; Disclaimer of Warranty.
(a) The data contained in the M-RETS System (i) has been gathered by M-RETS from sources believed by M-RETS to be reliable, including but not limited to control area operators and Registered Generators.However, M-RETSdoes not warrant that the information in the M-RETS System is correct, complete, current or accurate, and it does not warrant that the software programs in the M-RETS System will be error free or bug free or non-infringing.Except as, and solely to the extent, specifically set forth in the M-RETS Operating Procedures M-RETS has no obligation to audit or otherwise verify any information contained in the M-RETS System.
(c) M-RETS is not responsible for the acts or omissions of parties who input data into the M-RETS System or from whom data is obtained for inclusion into the M-RETS System.
(d) User is solely responsible for the protection, security and management of usage and security of its computer network. M-RETS will not compensate User for damages incurred due to security violations of the security of User’s computer network, nor shall User make deductions or set offs of any kind for Fees due to M-RETS resulting therefrom.
13. Limitation of Liability.
14. Passwords and Login Information. User agrees to assume sole responsibility for the security of User’s user name, passwords, security questions and answers for accessing the M-RETS System.User agrees not to share User’s access to the M-RETS System, user name, passwords, security questions and answers with any other person or user, or to do anything that might jeopardize the security of User’s account.User agrees to immediately notify M-RETS of any suspected unauthorized use of User’s user name, password(s) or Account or any other suspected breach of security.
15. Viruses. M-RETS assumes no responsibility and shall not be liable for, any damages to, or viruses that may infect User’s equipment or other property on account of User’s access to or use of any information or the use of the M-RETS System.
If to M-RETS:
Midwest Renewable Energy Tracking System, Inc.
Attn: M-RETS Administrator
60 S. 6th Street, Suite 2800
Minneapolis, MN 55402
If to User:
To the address provided at the time of registration
Service shall be effective on the earlier of actual receipt or the second business day after the day of mailing via first class mail.For service of notice via email or facsimile, it shall be deemed received on the day said notice was sent to the other Party.
25. Capitalized Terms. Any capitalized terms contained herein that are not otherwise defined herein shall have the meanings as such terms are defined in the M-RETS Operating Procedures.
27. Links. M-RETS makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of sites accessible by hyperlink from the M-RETS Site, or sites linking to the M-RETS Site.The linked sites are not under the control of M-RETS and M-RETS is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes, or updates to such sites.The inclusion of any link does not imply affiliation, endorsement, or adoption by M-RETS of the M-RETS Site or any information contained therein.When leaving the M-RETS Site, you should be aware that M-RETS’s Terms and policies no longer govern, and therefore you should review the applicable terms and policies, including privacy and data-gathering practices, of that site.
Capitalized terms used herein shall have the meanings ascribed to such terms in the M-RETS Operating Procedures or as follows:
Account:Any and all accounts maintained in the M-RETS System in accordance with the M-RETS Operating Procedures.
User Attribute/Generation Attribute:A non-Energy characteristic of a generator, such as location, vintage, fuel, state RPS program eligibility, etc.
Energy:The physical electricity commodity of the electrons transmitted through the power grid.
Generator Owner:The person or entity holding legal title to a particular generating unit.
M-RETS Administrator:The M-RETS Administrator is the entity with the authority to administer or oversee the administration and implementation of the M-RETS Operating Procedures.
M-RETS: M-RETS, Inc., the Wisconsin non-profit corporation named Midwest Renewable Energy Tracking System, Inc.
M-RETS Operating Procedures:The Midwestern Renewable Energy Tracking System Operating Procedures, dated December 6, 2006, as amended from time to time.
M-RETS Region:The region located within the state and provincial boundaries of those states and provinces that are included within the M-RETS footprint from time to time, as set forth in the M-RETS Operating Procedures.
M-RETS System: The software application program that (i) creates Certificates to uniquely define Attributes; and (ii) tracks said Certificates.
Regulator:A person or agency executing and delivering to M-RETS a Consent of Non-Transacting State Regulator in the form of Schedule B-2 and thereafter using the M-RETS System with limited level 4 access to generate compliance or informational reports.
Renewable:Meeting the definition of “renewable” in any of the states or provinces comprising the M-RETS footprint.
User Agent:An agent of User who shall be designated either on a Schedule C-1 - Declaration of Agency, Level 1 Access, or on a Schedule C-2 – Declaration of Agency, Level 2, Level 3 or Level 4 Access.