|
BY APPLICABLE LAW. CUSTOMER FURTHER WAIVES ITS RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES --
<br />CONSUMER PROTECTION ACT, SECTION 17.41, ET. SEQ., BUSINESS & COMMERCE CODE, A LAW THAT GIVES
<br />CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. CUSTOMER REPRESENTS AND WARRANTS TO GEXA
<br />THAT: (a) CUSTOMER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION IN RELATION TO GEXA;
<br />(b) CUSTOMER IS REPRESENTED BY LEGAL COUNSEL THAT WAS NEITHER DIRECTLY NOR INDIRECTLY
<br />IDENTIFIED, SUGGESTED OR SELECTED BY GEXA; AND (c) CUSTOMER VOLUNTARILY CONSENTS TO THIS
<br />WAIVER AFTER CONSULTATION WITH ITS LEGAL COUNSEL.
<br />B.4 UCC/Disclaimer of Warranties. The electricity delivered is a "good" as that term is understood in the Texas B&CC (UCC
<br />§2.105). The Parties waive the UCC to the fullest extent allowed by law and the UCC requirements do not apply to this Agreement,
<br />unless otherwise provided. If there is a conflict between the UCC and this Agreement, this Agreement controls. Neither Party controls
<br />nor physically takes possession of the electric energy prior to delivery to Customer's ESI ID(s). Therefore, neither Party is responsible
<br />to the other for any damages associated with failure to deliver the electric energy, nor for damages it may cause prior to delivery to
<br />Customer's ESI ID(s). Once the electric energy is delivered to Customer's ESI ID(s) it is deemed in possession and control of
<br />Customer. ELECTRICITY SOLD UNDER THIS AGREEMENT WILL MEET THE QUALITY STANDARDS OF THE APPLICABLE
<br />LOCAL DISTRIBUTION UTILITY AND WILL BE SUPPLIED FROM A VARIETY OF SOURCES. GEXA MAKES NO
<br />REPRESENTATIONS OR WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT, AND GEXA
<br />EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
<br />MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. GEXA EXPRESSLY NEGATES ALL OTHER
<br />REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OF
<br />WARRANTY WITH RESPECT TO CONFORMITY, TO MODELS OR SAMPLES, MERCHANTABILITY, OR FITNESS FOR A
<br />PARTICULAR PURPOSE.
<br />B.5 Force Majeure. Gexa shall make commercially reasonable efforts to provide electric service, but does not guarantee a
<br />continuous supply of electricity. Gexa does not generate electricity nor does it transmit or distribute electricity. Causes and events out
<br />of the control of Gexa and Customer ("Force Majeure Event(s)") may result in interruptions in service or the ability to accept electricity.
<br />If either Party is unable to perform its obligations, in whole or in part, due to a Force Majeure Event, then the obligations of the affected
<br />Party (other than the obligation to pay any amounts owed to Gexa that relate to periods prior to the Force Majeure Event) are
<br />suspended to the extent made necessary by such Force Majeure Event. Therefore, neither Party is liable to the other Party for
<br />damages caused by Force Majeure Events, including acts of God, acts of, or the failure to act by, any governmental authority (including
<br />the PUCT or ERCOT and specifically including failure by ERCOT to make Customer meter read data available), accidents, strikes,
<br />labor troubles, required maintenance work, events of "force majeure" or "uncontrollable force" or a similar term as defined under the
<br />applicable transmission provider's tariff, inability to access the local distribution utility system, non-performance by the supplier or the
<br />local distribution utility, changes in laws, rules, or regulations of any governmental authority (including the PUCT or ERCOT) that would
<br />prevent the physical delivery of energy to Customer's facilities, or any cause beyond such Party's control. The Parties agree that
<br />Appropriations Failures and Scheduling Failures are not Force Majeure Events.
<br />C. CONFIDENTIALITY AGREEMENT
<br />CA Confidentiality. Customer is a governmental body subject to public information laws, including Chapter 552 of the Texas
<br />Government Code. If Customer recieves a valid request under applicable public information laws for information related to this
<br />Agreement, it shall provide Gexa notice of the request including a description the information sought prior to Customer's release of
<br />information so that Gexa has the opportunity to determine whether such information is subject to an exception as trade secret,
<br />competitive, comercial, or financial information. With the exception of the preceding disclosures pursuant to public infromation laws, a
<br />Party (that party, the "Receiving Party") shall keep confidential and not disclose any to third parties Confidential Information which is
<br />disclosed to the Receiving Party by the other Party (that party, the "Disclosing Party") except for disclosures to Authorized Parties or
<br />as required by law. "Confidential Information" means information in written or other tangible form which is marked as "Confidential"
<br />when it is disclosed to the Receiving Party, except that Confidential Information shall not include information which (i) is available to the
<br />public, (ii) becomes available to the public other than as a result of a breach by the Receiving Party of its obligations hereunder, (iii) was
<br />known to the Receiving Party prior to its disclosure by the Disclosing Party, or (iv) becomes known to the Receiving Party thereafter
<br />other than by disclosure by the Disclosing Party. The provisions of this Section apply regardless of fault and survive termination,
<br />cancellation, suspension, completion or expiration of this Agreement for a period of two (2) years. Customer authorizes Gexa to
<br />provide TCAP with all information requested by TCAP about Customer's account and billings. "Authorized Parties" means those
<br />officers, directors, employees, agents, representatives and professional consultants of the Parties, and of the Parties' affiliates, that
<br />have a need to know the Confidential Information for the purpose of evaluating and performing this Agreement.
<br />D. DEFAULT AND REMEDIES
<br />DA Events of Default. An event of default ("Event of Default") means: (a) the failure of Customer to make, when due, any
<br />payment required under this Agreement for any undisputed amount if that payment is not made within fifteen (15) business days after
<br />receipt of written notice (facsimile or electronic mail are valid forms of notice for this paragraph) from Gexa; or (b) any representation or
<br />warranty made by a Party proves to be false or misleading in any material respect; (c) except as provided in clause (a) above or
<br />otherwise in this section D.1, the failure of any Party to perform its obligations under this Agreement and that failure is not excused by
<br />Force Majeure and remains uncured following 20 business days written notice of the failure; (d) the defaulting Party (i) makes an
<br />assignment or any general arrangement for the benefit of creditors; or (ii) files a petition or otherwise commences, authorizes or
<br />A-2 ELGCTXTCAPCESATERMA040920
<br />
|