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<br />nothing contained herein shall be construed as to deny or diminish the economic benefit of this Agreement to either Party, and
<br />neither Party shall be under any obligation whatsoever to agree to a modification that would have such result.
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<br />7.3 (a) In the event that this Agreement is terminated by Seller pursuant to Section 7.1,Jhe Parties agree, that in addition
<br />to all amounts Buyer may owe Seller prior to the termination, Seller's damages shall be the positive amount, if any, calculated as
<br />follows: (all remaining unpurchased quantities of electricity reflected on Exhibit "A" through the end of the Agreement Term)
<br />multiplied by (the price that Buyer would have paid for the unpurchased quantities through the end of the Agreement Term
<br />according to the applicable Price Sheet, minus the current retail market price for the unpurchased quantities at the time of
<br />termination) plus (all reasonable costs and expenses incurred by Seller). Such amount shall be immediately due and payable
<br />within thirty calendar days following such termination. The current retail market price in this instance shall mean the price that
<br />Seller would reasonably be able to obtain from a bona-fide third party if entering into a contract with another customer for the
<br />unpurchased quantities, and for the remaining term after the Early Termination Date through the end of the Agreement Term.
<br />Seller shall have a duty to use commercially reasonable efforts to mitigate its damages.
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<br />(b) In the event that this Agreement is terminated by Buyer pursuant to Section 7.1,.....the Parties agree, that in addition
<br />to all amounts Seller may owe Buyer prior to the termination, Buyer's damages shall be the positive amount, if any, calculated as
<br />follows: (all remaining unpurchased quantities of electricity reflected on Exhibit "A" through the end of .the Agreement Term)
<br />multiplied by (the current retail market price for the unpurchased quantities at the time of termination, minus the price that Buyer
<br />would have paid for the unpurchased quantities through the end of the Agreement Term according to the applicable Price
<br />Sheet) plus (all reasonable costs and expenses incurred by Buyer). Such amount shall be immediately due and payable within
<br />thirty calendar days following' such termination. The current retail market price in this instance shall mean the price Buyer would
<br />have to pay if entering into a contract with another Retail Electric Provider ("REP") for the same quantities, and for the
<br />remaining term after the Ear1y Termination Date through the end of the Agreement Term. The price offered by the POLR, or
<br />any REP's Standard List Price Offer, shall not be used to calculate Buyer's damages. Buyer shall have a duty to use
<br />commercially reasonable efforts to mitigate its damages.
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<br />7.4 Buyer may terminate this Agreement, on a prospective basis, in the event of non-appropriation of funding for this
<br />Agreement by Buyer's Governing Body. Buyer agrees, to the full extent allowed by Texas law, that if any funds are
<br />appropriated for electricity costs, such funds shall be applied first to the cost of electricity provided pursuant to this Agreement.
<br />. Buyer agrees to notify the REP in writing of such non-appropriation at the earliest practicable time subsequent to the failure to
<br />appropriate, and as of Buyer's termination date, Seller shall have no further duty to supply Electricity to Buyer and shall move
<br />service for the Accounts to the POLR as established by the PUCT on the date of termination for non-appropriation.
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<br />VIII. FORCE MAJEURE. If either Party is unable to perform its obligations in whole or in part due to an event of force
<br />majeure as defined herein, then the obligations of the affected Party shall be suspended to the extent made necessary by
<br />such event. The term "force majeure" means any cause not within the control of the Party claiming relief, including, but not
<br />limited to, Acts of God, including magnetic disturbances but not including extremes of temperature alone; arrests, orders,
<br />directives, restraints and requirements of the govemment and governmental agencies, either federal or state (excluding
<br />Buyer), civil or military; civil disorder; strikes or labor disputes; fa.ilure, repair or change of or obstruction in electric power lines,
<br />equipment or machinery; the failure of the TDSP to receive, transport, or deliver, or otherwise perform, unless due to the
<br />failure of the Party claiming force majeure to perform such Party's obligations hereunder; an event of force majeure of Seller's
<br />supplier(s) or with Buyer's electrical equipment at Buyer's Premises; or any other cause which by the exercise of reasonable
<br />diligence such Party could not have prevented or is unable to overcome. Any such event of force majeure shall, so far as
<br />possible, be remedied with all reasonable dispatch. It is understood and agreed that the settlement of strikes or lockouts will
<br />be entirely within the discretion of the Party having the difficulty, and that the above requirement of the use of diligence in
<br />restoring normal operating conditions will not require the settlement of strikes or lockouts by acceding to the terms of the
<br />opposing party when such course is inadvisable in the discretion of the Party having the difficulty. Neither financial distress
<br />nor the inability of either Party to make a profit or avoid a financial loss shall be deemed a force majeure event, nor shall (i)
<br />changes in the market prices of fuel, energy, or electricity, or (ii) a Party's financial inability to perform its obligations under this
<br />Agreement, constitute an event of Force Majeure hereunder.
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<br />IX. WARRANTIES AND LIMITATIONS OF LIABiliTIES.
<br />9.1 Seller hereby warrants to Buyer that at the time of delivery of electricity hereunder it will have good title and/or the right to
<br />sell such electricity, and that such electricity will be free and clear of all liens and adverse claims. Title will pass to Buyer at
<br />the TDSP Point of Delivery. EXCEPT AS PROVIDED FOR IN THE FIRST SENTENCE OF THIS PARAGRAPH, SELLER
<br />EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES, WHETHER WRITTEN OR VERBAL, WHETHER EXPRESS,
<br />IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS, IMPLIED, OR STATUTORY
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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<br />9.2 Unless otherwise expressly provided herein, any liability under this Agreement will be limited to direct actual damages as
<br />the sole and exclusive remedy, and all other remedies or damages at law or in equity are waived. Neither Party will be liable
<br />for consequential, incidental, punitive, exemplary or indirect damages, including lost profits or other business interruption
<br />damages, whether in tort or contract, under any indemnity provisions or otherwise in connection with this Agreement. The
<br />,limitations imposed on remedies and damage measurement will be without regard to cause, including negligence of any Party,
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