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Terms and Conditions of Service
<br />Attachment A
<br />These Terms and Conditions of Service form an integral part of the Commercial Electricity Service Agreement between Customer
<br />and Gexa. In addition to the terms defined elsewhere in this Agreement, when used with initial capitalization, whether singular or plural,
<br />capitalized terms have the meanings set forth in Section 7.1 of this Agreement. Customer should thoroughly review the entire
<br />Agreement, including these Terms and Conditions of Service, before executing this Agreement.
<br />A. REPRESENTATIONS AND WARRANTIES
<br />A.1 Customer's Representations and Warranties. As a material inducement to entering into this Agreement, Customer
<br />represents and warrants to Gexa as follows: (a) it is a duly organized entity and is in good standing under the laws of Texas; (b) the
<br />execution and delivery of the Agreement are within its powers, have been duly authorized by all necessary action, and do not violate
<br />the terms or conditions of contracts it is party to or laws applicable to it; (c) performance of this Agreement will be duly authorized by all
<br />necessary action and will not violate the terms or conditions of contracts it is party to; (d) as of the date sales of electricity by Gexa to
<br />Customer under the Agreement start, Customer will have all regulatory authorizations necessary for it to legally perform its operations
<br />and such performance will not violate the terms or conditions of contracts it is party to or laws applicable to it; (e) this Agreement is a
<br />legal, valid, and binding obligation of Customer enforceable against it in accordance with its terms, subject to bankruptcy, insolvency,
<br />reorganization, and other laws affecting creditor's rights generally, and with regard to equitable remedies, subject to the discretion of the
<br />court before which proceedings to obtain the same may be pending; (f) there are no bankruptcy, insolvency, reorganization,
<br />receivership, or other similar proceedings pending or being contemplated by it, or to its knowledge threatened against it; (g) there are
<br />no suits, proceedings, judgments, rulings, or orders by or before any court or any government authority that could materially adversely
<br />affect its ability to perform the Agreement; and (h) as of the Effective Date and throughout the Term, there is no other contract for the
<br />purchase of electricity by Customer for the ESI ID(s), or, if such a contract presently exists, that it will terminate prior to delivery under
<br />this Agreement.
<br />A.2 Gexa's Representations and Warranties. As a material inducement to entering into this Agreement, Gexa represents and
<br />warrants to Customer as follows: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its
<br />formation and is qualified to conduct its business in those jurisdictions necessary to perform the Agreement; (b) the execution and
<br />delivery of the Agreement are within its powers, have been duly authorized by all necessary action, and do not violate the terms or
<br />conditions of its governing documents or contracts it is party to or any laws applicable to it; (c) performance of the Agreement will be
<br />duly authorized by all necessary action and will not violate the terms or conditions of its governing documents or contracts it is party to;
<br />(d) as of the date sales of electricity by Gexa to Customer under the Agreement start, Gexa will have all regulatory authorizations
<br />necessary for it to legally perform its operations and such performance will not violate the terms or conditions of its governing
<br />documents, contracts it is party to, or laws applicable to it; and (e) the Agreement constitutes a legal, valid, and binding obligation of
<br />Gexa enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and other laws affecting
<br />creditor's rights generally, and with regard to equitable remedies, subject to the discretion of the court before which proceedings to
<br />obtain the same may be pending.
<br />A.3 Forward Contract. (i) This Agreement constitutes a forward contract within the meaning of the United States Bankruptcy
<br />Code ("Code"); (ii) Gexa is a forward contract merchant; and (iii) either Party is entitled to the rights under, and protections afforded by,
<br />the Code.
<br />B. DISCLAIMERS OF WARRANTIES; LIMITATION OF LIABILITIES
<br />B.1 LIMITATIONS OF LIABILITY. LIABILITIES NOT EXCUSED BY REASON OF FORCE MAJEURE OR AS OTHERWISE
<br />PROVIDED, ARE LIMITED TO DIRECT ACTUAL DAMAGES. GEXA IS NOT LIABLE TO CUSTOMER FOR CONSEQUENTIAL,
<br />INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES OR LOSS OF REVENUES OR PROFIT. THESE LIMITATIONS
<br />APPLY WITHOUT REGARD TO THE CAUSE OF ANY LIABILITY OR DAMAGE. EXCEPT FOR (a) THE GEXA EARLY
<br />TERMINATION DAMAGES DUE IF GEXA DEFAULTS, (b) THE CUSTOMER EARLY TERMINATION DAMAGES DUE IF CUSTOMER
<br />DEFAULTS, AND (c) THE WHOLESALE TRANSACTION TERMINATION PAYMENT, THE LIABILITY OF EITHER PARTY TO THE
<br />OTHER FOR ANY OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF ALL
<br />DOLLARS PAID BY CUSTOMER TO GEXA (IF CUSTOMER) OR RECEIVED BY GEXA (IF GEXA) PURSUANT TO THIS
<br />AGREEMENT. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT.
<br />B.2 Duty to Mitigate. Each Party shall mitigate damages and use commercially reasonable efforts to minimize any damages it
<br />may incur as a result of the other Party's performance or non-performance.
<br />B.3 WAIVER OF CUSTOMER PROTECTION RULES AND CONSUMER RIGHTS. THE PARTIES FURTHER ACKNOWLEDGE
<br />THAT THE CUSTOMER PROTECTION RULES ADOPTED BY THE PUBLIC UTILITY COMMISSION (AS CONTAINED IN ITS
<br />SUBSTANTIVE RULES 25.471 ET SEQ.) ("CUSTOMER PROTECTION RULES") THAT PERTAIN TO RETAIL ELECTRIC
<br />SERVICE RELATED TO RESCISSION RIGHTS, CUSTOMER DISCLOSURES, DELIVERY OF CUSTOMER
<br />CONTRACTS TO CUSTOMERS, RECORDKEEPING, INTEREST PAID ON DEPOSITS AND CUSTOMER NOTICES DO
<br />NOT APPLY TO THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS SECTION, CUSTOMER EXPRESSLY WAIVES THE
<br />CUSTOMER PROTECTION RULES THAT PERTAIN TO RETAIL ELECTRIC SERVICE RELATED TO RESCISSION
<br />RIGHTS, CUSTOMER DISCLOSURES, DELIVERY OF CUSTOMER CONTRACTS TO CUSTOMERS,
<br />RECORDKEEPING, INTEREST PAID ON DEPOSITS AND CUSTOMER NOTICES TO THE FULLEST EXTENT ALLOWED
<br />A-1 ELGCTXTCAPCESATERMA040920
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