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<br />other Party. If such right to terminate is not exercised within forty-five calendar days after the date of the original notice hereunder, then the
<br />right to terminate this Agreement shall be waived with respect to the particular event.
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<br />11.3 Seller agrees to maintain all necessary certifications and comply with all necessary PUCT and/or ERCOT requirements in order to
<br />perform its obligations under this Agreement.
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<br />11.4 Notwithstanding anything contained 'in this Agreement, Buyer shall not attempt to utilize, under the provisions of this Section XI or
<br />Section VIII, or in any other manner, its inherent powers as a political subdivision of the State of Texas in order to circumvent in any way the
<br />terms and provisions of this Agreement or the intent of this Agreement.
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<br />XII. FAILURE OR TEMPORARY DISCONTINUANCE OF SUPPLY.
<br />12.1 The supply of electricity may be disconnected in the event of Force Majeure in respect of this Agreement; or if at TDSP's discretion it is
<br />necessary to ,do so for any of the following reasons: (a) to avoid danger; or because failure to disconnect the supply of electricity would or
<br />might involve TDSP being in breach of applicable regulations or laws; or to avoid interference with the supply of electricity to another person
<br />which TDSP reasonably believes may be caused or result from Buyer's equipment or device used at the Premise(s); or to enable TDSP or
<br />TDSP's representatives to inspect, maintain or repair any part of the equipment or the Distribution System; or in case of ac<;ident or other
<br />emergency affecting or likely to affect the Distribution System or any other system through which (directly or indirectly) Seller or TDSP
<br />receives or supplies electricity; or (b) because Buyer's electric connections or systems are de~med by TDSP to present a hazard. .
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<br />12.2 In the event that the supply of electricity to Buyer's Premises is interrupted due to the material breach by Seller Qf its contractual
<br />obligations under this Agreement and not due ~o (i) a force majeure event, (ii) as provided in paragraph 12.1 above. or (iii) the failure of
<br />Buyer to comply with its obligations under this Agreement, then, in the event Buyer is required to purchase replacement electricity from a
<br />third party during such interruption, Seller shall be liable for the positive amount, if any, calculated as follows: the quantities so interrupted by
<br />Seller multiplied by [the then current retail market price (or the POLR price if Buyer was unable to purchase electricity from another retail
<br />electricity provider) minus the contracted price from the applicable Price Sheet].'
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<br />XllI. RESPONSIBILITY.
<br />13.1 Buver ResDonsibilitv, Buyer assumes full responsibility for electric energy furnished to Buyer at and on Buyer's side of the Point of
<br />Delivery, and agrees, to the full extent allowed by law, to hold harmless Seller, its parent company and all of its affiliates, and all of their
<br />respective officers, directors, shareholders, associates, employees, servants, and agents (hereinafter collectively referred to as "Seller
<br />Group"). from and against all claims, losses, expenses, damages, demands, judgments, causes of action. and suits of any kind (hereinafter
<br />collectively referred to "Claims"), including Claims for personal injury, death, or damages to property occurring on Buyer's side of the Point
<br />of Delivery and upon the Premise(s), arising out of or related to the electric power and energy and/Qr Buyer's performance under the
<br />Agreement.
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<br />13.2 Seller ResDonsibilitv. Buyer acknowledges and understands that (i) Seller never obtains physical possession or control of the electricity,
<br />(ii) .seller does not own nor have control of the electric transmission wires and equipment, and that they are owned and/or controlled by the
<br />TDSP, (iii) all meter reading, and repair ~ervices will be provided by employees or agents of the TDSP, (iv) all responsibilities and liabilities
<br />of the TDSP are set forth in the tariffregulatioils as approved by the PUCT, and (v) the employees and agents of the TDSP are not employees
<br />or agents of Seller. Seller shall not have any obligation whatsoever to indemnify, defend, nor hold harmless Buyer, its parent company and all
<br />of its affiliates, and all of their respective officers, directors, shareholders. associates, employees, servants. and agents (hereinafter collectively
<br />referred to as "Buyer Group"). against any Claims, on either side of the Point of Delivery, arising out of or in any way related to the
<br />electricity and/or the deiivery thereof, including, without limitation, the actions of the TDSP and its employees and agents, except in the
<br />event, and only in the event, that such Claims are the direct result of the sole negligence and/or intentionally wrongful act of an employee, or
<br />agent under the exclusive control, of Seller.
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<br />XIV. MISCELLANEOUS.
<br />14.1 TDSPs. Buyer and Seller agree to all terms and conditions (adopted pLV"suant to statutes, regulations or other lawful authority) of the
<br />TDSPs that provide electricity delivery services to the Premise(s) or other Buyer facilities, which may from time to time be amended, are
<br />made part of this Agreement.
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<br />14.2 Choice of Law: Venue. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
<br />OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES WHICH OTHERWISE
<br />MIGHT BE APPLICABLE.
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<br />14.3 Assienment. In the event that Buyer conveys legal title to all of the Premises to the same entity, Buyer may request from Seller the right
<br />to assign its rights and obligations under the Agreement to the new owner of the Premises, and in such event, Seller shall not unreasonably
<br />withhold its consent Any purported assignment without Seller's prior written consent shall be null and void. Buyer shall not have any right
<br />whatsoever to assign this Agreement to any party that is not the owner of all of the Premises"and any purported assignment shall be n~ll and
<br />void. Seller may assign this Agreement to another party, with the prior written consent of Buyer, which consent shall not be unreasonably
<br />withheld. Any purported assignment without Buyer's prior written consent shall be null and void. This Agreement shall inure to and be
<br />binding upon the Parties hereto, and their respective successors and assigns. . .
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<br />H-GAC Energy Purchasing Corporation
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