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<br />Such amount shall be immediately due and payable within thirty calendar days following such termination. The current retail market price in this
<br />instance shall mean the price Buyer would have to pay if entering into a contract with another Retail Electric Provider (UREP") for the same
<br />quantities, and for the remaining term after the Early Termination Date through the end of the Agreement Term. The price offered by the
<br />POLR, or any REP's Standard List Price Offer, shall not be used to calculate Buyer's damages, Buyer shall have a duty to use commercially
<br />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 Agreement by Buyer's
<br />Governing Body. Buyer agrees, to the full extent allowed by Texas law,. that if any funds are appropriated for electricity costs, such funds
<br />shall be applied first to the cost of electricity provided pursuant to this Agreement. Buyer agrees to notify the REP in writing of such non-
<br />appropriation at the earliest practicable time subsequent to the failure to appropriate, and as of Buyer's termination date, Seller shall have no
<br />further duty to supply Electricity to Buyer and shall move service for the Accounts to the POLR as established by the PUCT on the date of
<br />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 majeure as
<br />defined herein, then the obligations of the affected Party shall be su~pended to the extent made necessary by such event. The term "force
<br />majeure" means any cause not within the control of the Party claiming relief, including, but not limited to, Acts of God, including magnetic
<br />disturbances but not including extremes of temperature alone; arrests, orders, directives, restraints and requirements of the government and
<br />governmental agencies, either federal or state (excluding Buyer), civil or military; civil disorder; strikes 'or labor disputes; failure, repair or
<br />change of or obstruction in electric power lines, equipment or machinery; the failure of the TOSP to receive, transport, or deliver, or
<br />otherwise perform, unless due to the failure of the Party claiming force majeure to perform such Party's obligations hereunder; an event of
<br />force majeure of Seller's supplier(s) or with Buyer's electrical equipment at Buyer's Premises; or any other cause which by the exercise of
<br />reasonable 'diligence such Party could not have prevented or is unable to overcome. Any such event of force majeure shall, so far as possible,
<br />be remedied with all reasonable dispatch. It is understood and agreed that the settlement of strikes or lockouts will be entirely within the
<br />discretion of the Party having the difficulty, and that the above requirement of the use of diligence in restoring normal operating conditions
<br />will not require the settlement of strikes or lockouts by acceding to the terms of the opposing party when such course is inadvisable in the
<br />discretion of the Party having the difficulty. Neither financial distress nor the inability of either Party to make a profit or avoid a financial
<br />loss shall be deemed a force majeure event, nor shall (i) changes in the market prices of fuel, energy, or electricity, or (ii) a Party's financial
<br />inability to perform its obligations under this 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 sell such
<br />electricity, and that such electricity will be free and clear of all liens and adverse claims. Title will pass to Buyer at the TOSP Point of
<br />Delivery. EXCEPT AS PROVIDED FOR IN THE FIRST SENTENCE OF THIS PARAGRAPH, SELLER EXPRESSLY DISCLAIMS
<br />AND MAKES NO WARRANTIES, WHETHER WRJTIEN OR VERBAL, WHETHER EXPRESS, IMPLIED, OR STATUTORY,.
<br />'INCLUDING, WITHOUT LIMITATION, ANY EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF MERCHANTABILITY OR
<br />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 the sole and
<br />exclusive remedy, and all other remedies or damages at law -or in equity are waived. Neither Party will be liable for consequential,
<br />incidental, punitive, exemplary or indirect damages, including lost profits or other business' interruption damages, whether in tort or contract,
<br />under any indemnity provisions or otherwise in connection with this Agreement. The limitations imposed on remedies and damage
<br />measurement will be without regard to cause. including negligence of any Party, whether sole, joint, concurrent, active or passive; provided
<br />no such limitation shall apply to damages resulting from the willful misconduct or gross negligence ofany Party.
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<br />X. NOTICES. All notices required or permitted under this Agreement shall be in writing and shall be deemed to be delivered when
<br />deposited in the United States mail (first class, registered or certified), postage prepaid, when deposited with an overnight delivery service,
<br />prepaid to the applicable Buyer's address shown in the attached ExhibitUA", and Seller's address as shown in the Offer, or to such address as
<br />either Party may from time to time designate as the address, or in the case of hand delivery, when delivered to a representative of either Party
<br />by a representative of the other Party; provided, however, except for payments of amounts due hereunder, either Party may provide such items
<br />hereunder by electronic mail or facsimile to the other Party at the applicable telephone number shown on the current Offer, and further
<br />provided, the original copy of such item shall be,sent to the other Party within three business days thereafter.
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<br />XI. APPLICABLE LAW AND REGULATIONS.
<br />11.1 This Agreement is subject to all applicable laws, regulations, rules and orders.
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<br />11.2 In the event ajudicial decision, order, new law or regulation, or a change in any law or regulation, requires a change in the method by
<br />which prices are calculated under this Agreement, or materially and 'directly affects a Party's ability to perform its obligations hereunder, then
<br />the Party that is negatively affected shall have the right to notify the other Party, within thirty calendar days after becoming aware of such
<br />detrimental change. 'The Parties shall attempt to negotiate a modification to the terms of this Agreement so as to mitigate the impact of the
<br />event. If, after twenty calendar days beyond the date of notice, the Parties have been unable to nego'tiate !l mutually satisfactory modification
<br />'to the terms of this Agreement, either Party shall have the right to terminate this Agreement upon ten calendar days prior written notice to the
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<br />H-GAC Energy Purchasing Corporation.
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