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<br />10.2 UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY LIABILITY UNDER THIS AGREEMENT Will BE L.IMITED TO
<br />DIRECT ACTUAL DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY, AND All OTHER REMEDIES OR OAMAGES AT LAW 'OR
<br />IN EQUITY ARE WAIVED. NEITHER PARTY Will .BE lIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE,
<br />EXEMPLARY OR INDIRECT DAMAGES, INCLUDING lOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES,
<br />WHETHER IN TORT OR CONTRACT, UNDER ANY' INDEMNITY PROVISIONS OR OTHERWISE IN CONNECTION WITH THIS.
<br />AGREEMENT. THE LIMITATIONS IMPOSED ON REMEDIES AND'DAMAGE MEASURI;MENT Will BE WITHOUT-REGARD'TO
<br />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 N~Gl.1GENCE'
<br />OF ANY PARTY.. . . . .
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<br />XI.. NOTICES. All notices required or permitted under this Agreement shall be In writing and shall be deemeclto be' delivered when
<br />deposited In the United States mail (first class as to all notices other.than disconnection, termination and/or material breach notices,
<br />and registered or certified as to all disconn~on, termlna.tlon and/or material breach notices), postage prepaid, when deposited With an.
<br />ovemight delivery service, prepaid to the applicable Buyer's address shown In the Transaction Confi.:mation, and seller's address as
<br />shown in the Transaction Confirmation, or to such address as either Party may from time to time designate as the address; or in the
<br />case of han~ delivery, when delivered to a representative of either Party by a representative of the' other Party; ",." ..
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<br />XII. APP.L1CABLE LAW AND REGULATIONS. . .
<br />12. f This Agreement Is !Subject to all applicable laws, regulations, rules and orders, e~cept both Parties agree that.lt Is their intention to
<br />agree to terms and conditions different from those set forth In the .Customer Protection Rules for Retail Electr1c.Servlce. all! amended,
<br />or as may be amended In the future (the .Customer Rules.) currently beginning with Section 25.471 of the PUCTs Substantive Rules
<br />Applicable to Electric Service Providers. In the event that there Is'any conflict between the terms contained in this Agreement andthe
<br />Customer Rules., this Agreement shall.control. The Parties expressly acknowledg~ that certain terms and conditions addressed in the
<br />Customer Rules may not be provided for or referred to In this Agreement, and, In such event, it is the intent.of,the Parties that such
<br />terms and conditions are not applicable to the Parties. .
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<br />12.2 In the event a judicial decision, order, new law or regulation, or a change in any law or regulation, requires a change in the
<br />method by' which prices are calculated under this Agreement, or materially and .directly affects a Party's ability to perform its obligations
<br />hereunder, then the Party that Is negatively affected shall have the right to notify the other Party; within thirty. calendar days after
<br />becoming aware of such detrimental change. The Parties shall use their best efforts to negotiate a modification to the terms of this
<br />Agreement so as to mitigate the Impact of the event. If, after twenty calendar days beyond the date of n.otlce,. the Parties have been
<br />unable to negotiate a mutually satisfactory modification to the terms of this Agreement, either Party shall hav~fthe right to terminate this
<br />Agreement upon ten calendar days prior written notice to the other Party. If such right to terminate is not exercised within forty-fiVe
<br />calendar days after the date of the original notice hereunder, then the right to terminate this Agreement shall be .waived with respect to
<br />the particular event. In the event of a termination pursuant to this Section 12.2, the Parties agree to settle as follows: (a) in the event
<br />the current Market Value of all remaining quantities of electricity reflected on Exhibit "A" after such terminatlon,date through the end of
<br />the Agreement Term ("the liquidated Quantities"), as reasonably determined by Seller, is greater than the prlce"Buyer.would have paid
<br />for the Liquidated Quantities as calculated on the applicable Price Sheet (the "Unpurchased Price"), then Seller shall pay to Buyer the
<br />amount equal to: the Liquidated Quantities multiplied by (such current Market Value minus the Unpurchased Price); (b) In. the event.
<br />the Unpurchasecl Price is more thl;ln the current Market Value of the Liquidated Quantities, as reasonably determined by .Seller, then
<br />Buyer shall pay to Seller the amount equal to: the Liquidated. Quantities multiplied by (the Unpurchased Price minus such current
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<br />12.3 Seller agrees to maintain all necessary certifications and comply with all necessary requirements In order to maintain its statUs as
<br />an authorized REP.
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<br />12.4 In the event Buyer utilizes, under the provisions of Article IX, Article XII, or In any other manner, Its inherent powers as a political
<br />subdivision of the State of Texas in order to circumvent in any way the terms and provisions of this Agreement or the intent of this
<br />Agreement, it shall be responsible for contract damages caused by such action. ' .' .
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<br />X1n. RESPONSIBILITY.
<br />13.1. Buyer assumes full responsibility for electric energy on Buyer's side of the TDSP Point of Delivery, and agrees, to the fullest'
<br />extent allowed by law, to and shall hold harmless Seller, its parent company and all of its affiliates, and all of their respective officers,
<br />directors, shareholders, associates, employees, servants, and agents (hereinafter collectively referred to as "Sener Group"), from and
<br />against all claims, losses, expenses, damages, demands, judgments, causes of action, and suits of any kind (hereinafter. collectively
<br />referred to "Claims"), including Claims for personal Injury, death, or damages to property, occurring on Buyer's side of the TDSP Point
<br />of Delivery, arising out of or related to the electric power and energy and/or Buyer's, performance under this Agreement.
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<br />13.2 Seller assumes full responsibility for electric energy on Seller's side of the Seller Point of Delivery, and agrees to. and shall hold
<br />harmless Buyer, its officials, .associates, employees, servants, and agents (hereinafter collectively referred to as "Buyer Group"), from
<br />and against all Claims, including Claims for personal injury, death, or damages to property occurring on Seller's side of the Seller "Point
<br />of Delivery, arising out of or related to the electric power and eflergy and/<?r Seller's performance under the AQreement.
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<br />XIV. MISCELLANEOUS.
<br />14.1 Choice of law I Venue. THIS AGREEMENT SHAll BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH .THE LAWS
<br />OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PRINCIPLES WHICH OTHERWISE MIGHT
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<br />City of LaPorte.nbc.dlj.c.102803.doc
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<br />CONFIDENTIAL
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