|
hereunder. Upon the termination of this Conu'ac:. any money so deposited, less any amount due TXUGD by
<br />Customer. will be refunded to Customer.
<br />
<br />13. l~orqe Maieur~
<br />(a) In the event either party is rendlered unable, wholly or in part. by force majeure to carry out its obligations under
<br />this Contract, except the obligation to pay monies due hereunder, it is a~eed that, on such party's giving notice and
<br />reasonably full particulars of such force majeure, in writing or by fax. email, electronic transfer or telecopy, to the
<br />other party within a reasonable time after the occurrence of the cause relied on, the obligations of the party giving
<br />such notice, to the extent they are affected by such force majeure, will be suspended during the continuance of any
<br />inability so caused, but for no longer period, and such cause will, so far as possible, b~ remedied with all reasonable
<br />dispatch. Inability or failure of TXUGD to deliver, or. TXIJGD to receive gas or perform under this Contract may.
<br />not be thc basis of claims for damages sustained by etther party or for breach of contract when due to force majeure.
<br />(b) The term "force majeure," as employed herein, means acts of God: thc clements; strikes, lockouts or other labor
<br />troubles or industrial disturbances; acts of the public enemy, wa~s. blockades, insun~ctioes, civil disturbances and
<br />riots, and epidemics; landslides, lighming, earthquakes, lures, storms, floc~s and washouts; acts. arresu, orders,
<br />directives, restraints and requirements of the government and governmental agencies, whether federal, state, civil or
<br />milieu'y; accidents: explosions; breakage, accident or obstructions involving a pipeline, machinery or lines of pipe:
<br />repairs or outages (shutdowns) of power plant equipment or lines of pipe for inspection, maintenance, change or
<br />repair: freezing of lines of pipe: depletion or failure of TXUGD's gas supply: fluctuations in gas pressure; demands
<br />in excess of the capacity of TXUGD's equipment, pipelines or TXUGD's sources of gas supply; and any other
<br />causes, whether of the kind enumerated or otherwise, not reasonably within the consol of the par~.y claiming
<br />suspension. It is understood and agreod that the handling of litigation with thixd paxties of any fact or issue and the
<br />settlement of strikes or lockouts will be entirely within the discretion and control of the patty involved, and that thc
<br />above reasonable dispatch will not require any particular action or the settlement of strikes or lockouts by acceding
<br />to the demand of the opposing party when such course is deemed to be inadvisable or inappropriate in the discretion
<br />of the party involved.
<br />
<br />14. Waiver of Breaches. Defaults or Risthts, Performance durin~ Default
<br />
<br />No waiver by either party hereto of any one or more breaches, defaults or rights under any provision of this Contract
<br />will operate or be construed as a waiver of any other breaches, defaults or rights, whether of a like or of a different
<br />character. By providing written notice to the other party, either party may assert any right not previously asserted
<br />hereunder or may assert its right to object to a default not previously protested. Except as specifically provided
<br />herein, in the event of any dispute under this Contract. the parties will. notwithstanding the pendency of such
<br />dispute, diligently proceed with the performance of this Contract without prejudice to the rights of either party.
<br />
<br />15. Ren~dv for Breach
<br />
<br />Except as otherwise specifically provided herein, if either par~y fails to perform any of the covenants or obligations
<br />imposed upon it in this Contract (except where such failure is excused under the Force Majeure provisions hereof),
<br />then the other party may. at its option (without waiving any other remedy for breach hcxeof), by notice in writing
<br />specifying the facts giving rise to the default has occurred, indicate such party's election to terminate this Contract
<br />due to such failure, However. Customer's failure to pay TXUGD within a period often (10) days followthg
<br />Customer's receipt of written notice from TXUGD advising of such failure to make payment in full within the time
<br />specified previously herein, will be a default that will give TXUGD the right to immediately terminate this Contract,
<br />unless such failure to pay such amounts is the result of a bona fide dispute betweco the parties hereto regarding such
<br />amounts hereunder and Customer timely pays ail amounts not in dispute. With respect to any other n~ters, the
<br />party in default will have thirty (30) days from receipt of such notice to remedy such default, and upon failure to do
<br />so, the party sending the notice of default may terminate this Contract from and after the expiration of such thirty
<br />(30) day period by sending the other party a notice of termination within thirty (30) days from the end of the prior
<br />thirty (30) day period. Such termination will he an additional remedy and will not prejudice the tighl of the pared
<br />not in default to collect any amounts due hereunder for any damage or loss suffered by it and will not waive any
<br />other remedy to which the party oot in default may be entitled for breach of this Conlxuct.
<br />
<br />16. Dispute Resolution
<br />
<br />Pursuant to the Federal Arbitration Act, the parties hereby agree that any controversy, chtitn or alleged
<br />breach, including but not limited to torts and statutory claims, at~ing out of ar related to this Contract
<br />shall be settled by binding arbitration administered by the American Arbitration Association ("AAA")
<br />
<br />Rev 05/25/01 Attach. to Rate Sch. 4221 12
<br />
<br />
<br />
|