and is not a penalty or punitive in any respect, and that neither party will be
required fo enter into a replacement transaction in order to determine or be
ented t a rmination payment
5. Changes in law. We may pass through or allocate, as the case may be, fo
you any increase or decrease in our costs related to the electricity and related
producis and services sold fo you that results from the implementation of new,
of changes (including changes to formula vate calculafons) to existing, Laws,
or other requirements or changes in administration or interpretation of Laws or
other requirements. “Law" means any law, rule, regulation, ordinance, statute,
judicial decision, adminisirafve order, ISO business practices or protocol,
UDC or ISO tarif, rule of any commission or agency with jurisdiction in the
Sfaie in which the Accounts are located. Such addifona! amounts wil be
included in subsequent invoices i you. The changes described in this Section
may change any or ail of the charges described in this Agreement, whether
described as “fixed,” “variable,” “pass-through” or otherwise. Your first bill
reflecting increased cosis will include a bill insert describing the increase in
costs in reasonable detail.
6. Events beyond either of our reasonable control. ifsomething happens
that is beyond either of our reasonable contro! that prevents either of us fom
performing our respecive obligations under this Agreement, then whichever
one of us cannot perform will be relieved from performance unfl the situation
is resolved. Examples of such events include: acts of God, fire, food,
hurricane, war, lerrorism, declaraton of emergency by a governmental enfiy,
the ISO or the UDC; curtailment disruption or interrupfon of electricity
transmission, distibufon or supply; regulatory, administrative, or legislative
acion, or action or restraint by court order or other governmental ently;
actons taken by third paries not under your or our control, such as the ISO or
a UDC. Such events shall not excuse failure make payments due in a
fmely manner for electricity supplied to you prior fo such event Further, if
such an event prevents or makes it impossible or impracticable for the
daiming partly carry out any obligafion under this Agreement due t the
events beyond effier of our reasonable contol for more than 30 days, then
whichever one of us whose performance was not prevented by such events
shall have the right to terminate the Agreement without penally upon 30 days’
writen notice the other.
7. UDC or ISO obligations. We will have no liability or responsibility for
maters within the control of the UDC or the 1SO-conirolled grid, which include
maintenance of electric lines and systems, service interrupions, loss or
terminafon of service, deterioration of electric 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, WITHOUT LIMITATION, LOST OPPORTUNITIES
OR LOST PROFITS. Each party's total liability related to this Agreement,
whether arising under breach of contract, tort, strict fabilty or otherwise, will
be limited to direc, actual damages. Direct, actual damages payable to us will
reflect the early termination payment calculation in Secion 4. Each pary
agrees ‘0 use commercially reasonable efforts fo 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 WILL 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 TO BE NEWYORK. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, WE ALSO BOTH AGREE IRREVOCABLY AND
UNCONDITIONALLY TO WAIVE ANY RIGHT TOA 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,
parinership or other joint undertaking. We are not acting as your consultant or
advisor, and you will not rely on us in evaluaing the advantages or
disadvantages of any specific product or service, predicfons about future
energy prices, or any other matter. Your decision fo enter into this Agreement
and any ofher decisions or actions you may take is and will be based solely
upon your own analysis (or that of your advisors) and not on information or
stements from us.
11. Confidentiality. Consistent with applicable regulatory requirements, we
will hold in confidence all information obtained by us fom you related fb the
provision of services under this Agreement and which concern your energy
characteristics and use palierns, except that we may, consistent with
applicable law and regulation, disclose such informafon to our affiliates and
such afiliates’ ernployees, agents, advisors, and independent contractors.
Except as otherwise required by law, you will agree to keep confidential the
terms of our Agreement, including price.
12. Miscellaneous Provisions. f in any circurrstance we do not provide
noice of or object ip, any defavit on your part such situafon wil 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 affected and will be valid and
enforced fo the fullest extent permitied by law and equity, and there will be
deemed substituied for the invalid provisions such provisions as will most
nearly carry out our mutual infent 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 atlempted transfer will
be void. We may assign our rights and obligafons under this Agreement,
This Agreement contains the enfre agreement between both of us,
supersedes any ofier agreements, discussions or understandings (whether
writen or oral) regarding the subject mater of this Agreement, and may not
be contradicted 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 parly authorizes the other party to afix an ink or digital stamp of fis
FOR INTERNAL USE ONLY
©2016 Constellation Energy Resources, LLC Allrights reserved.
Errors and omissions excepted. Std. Short Form_v.2010 Rev Mar-01-2016 0
Sales Rep: Craig Brazel 117636.46911.0 Printed: 9/15/2016
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