includes, without limitation, a Force Majeure affecting an RTO or Buyer’s Local Utility that in turn prevents a Party’s performance of its obligations hereunder, including, but not limited to: fire, strike, embargo, explosion, power failure, flood, lightning, war, water, electrical storms, labor disputes, civil disturbances, governmental regulations, orders, decrees, enforcement actions or other requirements, acts of civil or military authority, acts of God, acts of public enemies, inability to secure replacement parts or materials, transportation facilities, or other causes beyond its reasonable control, whether or not similar to the foregoing. A claim of Force Majeure may not be based on: (1) Buyer’s inability to economically use or dispose of Electricity purchased under this Agreement; (2) Buyer’s closure or material curtailment or discontinuation of operation of any of Buyer’s Facilities due to economic circumstance or condition; or (3) Seller’s ability to sell Electricity at a price greater than the Contract Price.
“Gains” means, with respect to a Party, an amount equal to the present value of the economic benefit to it, if any (exclusive of Costs), resulting from the termination of a Transaction, determined in a commercially reasonable manner.
“Governmental Entity” means a municipality, county, governmental board, governmental department, commission, agency, bureau, administrative body, joint action agency, court, or other similar political subdivision or public entity or instrumentality of the United States or one or more states.
“Imaged Document” means any document generated by the Parties which is scanned and stored in electronic form, including, by way of illustration and not limitation, portable document format (.pdf) or similar type (e.g. jpg, tiff, gif).
“Interest Rate” means two percent (2%) per annum over the prime-lending rate as published in The Wall Street Journal under “Money Rates”; provided that, the Interest Rate may never exceed the maximum rate permitted by Law.
“Law” means any law, constitution, charter, statute, ordinance, code, rule, regulation, tariff, protocols, decision, order, decree, judgment or other legislative or administrative action of any Governmental Entity, or any interpretation thereof by any court, agency or instrumentality having jurisdiction, as well as all rules, policies and procedures lawfully adopted by an RTO governing or controlling the area in which Buyer’s Facilities are located.
“Losses” means, with respect to a Party, an amount equal to the present value of the economic loss to it, if any (exclusive of Costs), resulting from termination of a Transaction, determined in a commercially reasonable manner.
“MWh” means a megawatt-hour of Electricity.
“Off-Peak Hours” means hours not defined as On-Peak Hours.
“On-Peak Hours” means hours determined to be “on peak” by Buyer’s regional reliability council of the North American Electric Reliability Council, or any successor entity, governing the area in which Buyer’s Facilities are located.
“RTO” means a power pool, independent system operator, transmission provider, or Buyer’s Local Utility acting as the grid manager, or any comparable entity that provides system management and oversight for Electricity delivered to Buyer’s Facilities.
“Settlement Amount” means, with respect to a Transaction, the Losses or Gains, and Costs, which the non-defaulting Party incurs as a result of the termination of such Transaction.
“Set-off” means offset, combination of accounts, netting, right of retention or withholding, or any similar right.
“Start Date” means the date specified in a Transaction; provided, that if a Transaction does not specify such a date, then the date upon which all of the conditions set forth under Articles 4.1(1)-(2) are satisfied.
“Taxes” means all federal, state and local taxes, assessments, levies, duties, fees, charges or withholdings of any kind, including gross receipts taxes, utility and regulatory taxes, assessments and surcharges however denominated and all penalties, fines, additions to tax, or interest on unpaid taxes.
“Termination Payment” has the meaning set forth in Article 7.3.
“Transaction” means an agreement between the Parties for the purchase and sale of Electricity pursuant to this Agreement, which may include, among other terms, the Electricity product, Contract Price, delivery term, Contract Quantity and Delivery Point(s).
“Transaction Addendum” means, in respect to a specific Transaction, a supplement to, or modification of, this Agreement signed, or deemed accepted, by both Parties setting forth the terms of such Transaction.
“Voice Record” means a recorded telephone conversation between representatives of the Parties evidencing the terms of a Transaction.
ARTICLE 12: MISCELLANEOUS
12.1 Definitions. When the singular number is used, it is deemed to include the plural and vice versa. The words “include” and “including” mean “including, without limitation” with respect to whatever follows.
12.2 Confidentiality. This Agreement, each Transaction, and all confidential business information of the Parties in connection with the Agreement are strictly confidential and shall not be disclosed by a Party (except to such Party’s Affiliates, employees, lenders, counsel and other advisors, permitted assignees, or prospective purchasers who have agreed to treat such information as confidential) without the prior written consent of the other Party, except as required by Law; provided that Seller may publicize the existence of this Agreement in press releases and sales and marketing materials, and identify Buyer as a customer of Seller and as a reference to third parties. The Parties agree that damages would be an inadequate remedy for breach of this provision and that either Party is entitled to equitable relief in connection herewith, provided that any damages are limited to actual damages as provided herein.
12.3 Notices. Unless otherwise specified herein, any notice required or permitted under this Agreement, must be in writing and addressed as provided in Article 13. Notice by receipt confirmed facsimile, email or hand delivery shall be effective on the Business Day actually received. Notice by overnight United States mail or courier shall be effective on the next Business Day after it was sent.
12.4 Entire Agreement. This Agreement contains the complete understanding between the Parties and supersedes
