and is not a penalty or punitive In any respect and that neither party will be
required i enter into a replacement transaction in order to determine or be
enifled fo a termination payment
5. Changes in law. We may pass through or allocata, as the case may be, fo
you any increase or decrease in our costs related to the electicity and related
producis and services sold fo you that resulls from the implemeniation of new,
or changes (including changes io formula rate calculafons) fo existing, Laws,
or other requirements or changes in administration or interpretation of Laws or
olher requirements. "Law" means any law, rule, regulation, ordinance, statute,
judicial decision, administrative order, ISO business practices or protocol,
UDC or ISO tartf, rule of any commission or agency with jurisdiction in the
sale in which the Accounts are located. Such additonal amounts will be
included in subsequent invoices io you. The changes described in this Section
may change any or all of the charges described in this Agreement, whether
described as “fixed," "variable," "pass-through" or otherwise. Your frst bil
reflecing increased costs will include a bill insert describing the Increase in
cos in reasonable detail.
6. Events beyond either of our reasonable control. ifsomething happens
that is beyond either of our reasonable control that prevents either of us from
performing our respecive obligations under this Agreement, then whichever
one of us cannot perform wil be relieved from performance until the situation
is resolved. Examples of such events include: acts of God, fre, flood,
hurricane, war, terrorism; declaration of emergency by a governmental entity,
the ISO or the UDC; curtailment disruption or interrupfon of electricity
transmission, distibuion or supply; regulatory, administrative, or legislative
action, or action or restraint by court order or other governmental entity;
acions taken by third parties not under your or our contral, such as the !SO or
a UDC. Such events shall not excuse failure to make payments due in a
fmely manner for electricity supplied to you prior to such event Further, if
such an event prevents or makes it impossible or impracticable for the
Claiming party > carry out any obligation under this Agreement due to the
events beyond either of our reasonable control for more than 30 days, then
whichever one of us whose performance was nef prevented by such events
shall have the right 0 terminate the Agreement without penalty upon 30 days’
writen notice to the other.
7, UDC or ISO obligations. We will have no liability or responsibility for
maters within the control of the UDC or the !SO-controlled grid, which include
maintsnance of electric lines and systems, service interruptions, loss or
termination of service, deterioration of electic services, or meter readings. .
8. Limitation on Liability. IN NO EVENT WILL EITHER PARTY OR ANY
OF ITS RESPECTIVE AFFILIATED COMPANIES BE LIABLE FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE
DAMAGES, INCLUDING, WTHOUT LIMITATION, LOST OPPORTUNITIES
OR LOST PROFITS. Each party's total liability related fo this Agreement,
Whether arising under breach of contract, tort, strict liability or otherwise, will
be limited to direct, acual damages. Direct, aclual damages payable to us will
reflect the early termination payment calculaion in Secion 4. Each party
agrees fD) use commercially reasonable efforts to mitigate damages it may
incur. NO WARRANTY, DUTY, OR REMEDY, WHETHER EXPRESSED,
IMPLIED OR STATUTORY, ON OUR PART iS GIVEN OR INTENDED TO
ARISE OUT OF THIS AGREEMENT, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
USE.
9, DISPUTE RESOLUTION, THIS AGREEMENT WLL BE GOVERNED BY
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE
IN WHICH ANY ACCOUNT IS LOCATED, WTHOUT GIVING EFFECT TO
ANY CONFLICTS OF LAW PROVISIONS, AND ANY CONTROVERSY OR
CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT WILL BE
SETTLED IN ACCORDANCE WITH THE EXPRESS TERMS OF THIS
AGREEMENT BY A COURT LOCATED IN SUCH STATE. IF THE MATTER
AT ISSUE INVOLVES ACCOUNTS OR MATTERS IN MORE THAN ONE
STATE, THE GOVERNING JURISDICTION AND VENUE SHALL BE
DEEMED TOBE NEW YORK. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, WE ALSO BOTH AGREE IRREVOCABLY AND
UNCONDITIONALLY TO WAIVE ANY RIGHT TO A TRIAL BY JURY OR TO
INITIATE OR BECOME A PARTY TO ANY CLASS ACTION CLAIMS WITH
RESPECT TO ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
10. Relationship of Parties. We are an independent contractor, and nothing
in this Agreement establishes a joint venture, fiduciary relationship,
partnership or other joint undertaking. We are not acting as your consultant or
advisor, and you will not rely on us in evaluating the advantages or
disadvantages of any specific product or service, predictions about fulure
energy prices, or any other matter. Your decision ‘o enter into this Agreement
and any ofher decisions or actions you may ‘ake is and will be based solely
upon your own analysis (or that of your advisors) and not on information or
statements from us.
11, Confidentiality. Consistent with applicable regulatory requirements, we
will hold in confidence all information obtained by us ‘tom you related fo the
provision of services under this Agreement and which concern your energy
characterisfics and use palierns, except that we may, consistent with
applicable law and regulation, disclose such information to our affiliates and
such afiliates’ employees, agents, advisors, and independent contractors.
Except as otherwise required by law, you will agree to keep confdental the
terms of our Agreement, including price.
12. Miscellaneous Provisions. If in any circumstance we do not provide
notice of, or object , any default on your part, such situation will not
constitute a waiver of any future default of any kind. If any of this Agreement
is held legally invalid, the remainder will not be affacied and will be valid and
enforced to the fullest extent permitiad by law and equity, and there will be
deemed substituted for the invalid provisions such provisions as will most
nearly carry out our mutual intent as expressed in this Agreement You may
not assign or otherwise transfer any of your rights or obligations under this
Agreement without our prior writen consent. Any such attempted transfer wil
be void. We may assign our rights and obligations under this Agreement
This Agreement contains the entire agreement between both of us,
Supersedes any other agreements, discussions or understandings (whether
writen or oral) regarding the subject mater of this Agreement, and may not
be contradicied by any prior or contemporaneous oral or writen agreement
A facsimile or e-mailed copy with your signature will be considered an original
for all purposes, and you will provide original signed copies upon request
Each party authorizes the other parly to afix an ink or digital stamp of its
FOR INTERNAL USE ONLY
©2016 Constellaion Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016 ()
Sales Rep: Craig Brazel 117636.46911.0 Printed: 9/15/2016
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