EXHIBIT 10.6
PG&E-TRANS(SM) USER AGREEMENT
This is a user agreement (hereafter the "Agreement") dated November 15,
1999, between PG&E GAS TRANSMISSION, NORTHWEST CORPORATION (hereafter "PG&E
GT-NW"), and Pacific Gas & Electric Co. (hereafter the "User"), for the use of
PG&E GT-NW's on-line services for conducting gas transportation and storage
related business, including PG&E-trans(SM), PG&E-trans(SM)nw, and
PG&E-trans(SM)northwest (hereafter collectively referred to as
"PG&E-trans(SM)").
WHEREAS, access to PG&E-trans(SM) benefits User and is an integral
part of the provision of on-line services through the global communications
network by PG&E GT-NW, providing functions formerly accessible only upon PG&E
GT-NW's Pacific Trail(R) Electronic Bulletin Board Service; and
WHEREAS, User desires to access and use PG&E-trans(SM), and bind itself
to reasonable terms and conditions of such access and use; and
WHEREAS, User desires to submit nominations of gas to PG&E GT-NW under
applicable tariffs and such other available applications, current or future,
deemed necessary and made available by PG&E GT-NW through PG&E-trans(SM); and
WHEREAS, User understands that by using PG&E-trans(SM), it may enter
into binding agreements with third parties;
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. User understands and agrees that it may bind itself contractually to
other users of PG&E-trans(SM) during the course of operating the
natural gas posting or remarketing functions of the PG&E-trans(SM)
system. User agrees that approving, agreeing to, or entering a
transaction as provided by PG&E-trans(SM), as it now exists, or may in
the future be modified, and subject to applicable tariffs, shall
constitute a written contract (a "Contract"). By executing this
Agreement, User agrees that it adopts any confirmation of a Contract as
provided by PG&E-trans(SM) as User's signature, and such confirmation
will, together with this Agreement, constitute an executed writing.
User agrees to waive any Statute of Frauds defense to the
enforceability of any Contract arising from use of PG&E-trans(SM). User
agrees and warrants that any employee or agent of User using
PG&E-trans(SM) shall have all necessary power and authority to use
PG&E-trans(SM) and enter Contracts as herein provided. User warrants
for itself, its successors and assigns that for each Contract that User
may enter as a result of using PG&E-trans(SM), User shall have all
right, title, power and authority necessary to honor said Contract.
PG&E-TRANS(SM) IS A SERVICE MARK OF PG&E CORPORATION.
PACIFIC TRAIL(R) IS A REGISTERED TRADEMARK OF PG&E GAS TRANSMISSION, NORTHWEST
CORPORATION.
PG&E Gas Transmission-Northwest and any other company referenced herein which
uses the PG&E name or logo are not the same company as Pacific Gas and Electric
Company, the California utility; neither PG&E Gas Transmission, Northwest
Corporation, nor these other referenced companies are regulated by the
California Public Utilities Commission, and customers do not have to buy
products from these companies in order to receive quality regulated services
from the utility.
1.1 User and PG&E GT-NW agree that this paragraph 1 is intended to
benefit users accessing PG&E-trans(SM), and that such other
users are third-party beneficiaries of said paragraph 1. User
and PG&E GT-NW do not intend hereby that other users are or
will be third-party beneficiaries of any other provisions of
this Agreement.
2. User agrees that it shall be bound by all the terms and conditions of
this Agreement, as well as any and all applicable tariffs currently in
effect for PG&E GT-NW as approved by the Federal Energy Regulatory
Commission ("FERC"), or which may hereafter be implemented. Such
tariffs are matters of public record, which User warrants it has
reviewed and will review in the future. User further agrees that PG&E
GT-NW may modify or limit PG&E-trans(SM) at any time and without
notice. From time to time, PG&E GT-NW may, at its sole discretion,
develop updates or enhancements to the existing functionality of
PG&E-trans(SM). If an update or enhancement is released to
PG&E-trans(SM), such update or enhancement will be subject to the terms
of this Agreement. PG&E GT-NW shall be under no obligation to provide
any such updates or enhancements.
3. PG&E GT-NW may terminate PG&E-trans(SM) and provide alternative
electronic bulletin board access at any time in accordance with its
tariffs, and may further terminate this Agreement with User, upon
written notice by PG&E GT-NW, for cause, including failure to honor
this Agreement, including applicable tariffs, failure to honor any
Agreement entered through PG&E-trans(SM), PG&E GT-NW's Pacific Trail(R)
Electronic Bulletin Board Service, or applicable PG&E GT-NW Electronic
Data Interchange Trading Partner Agreement, failure to pay required
reservation or demand charges, or failure to meet PG&E GT-NW's
applicable credit requirements. Either party may terminate this
Agreement upon thirty (30) days' notice, but no such termination
(whether for cause or otherwise) shall affect User's obligation for
Contracts entered during its use of PG&E-trans(SM). Without limiting
other remedies, PG&E GT-NW may immediately issue a warning, temporarily
suspend, indefinitely suspend or terminate this Agreement with User and
refuse to provide access to PG&E-trans(SM) if PG&E GT-NW believes that
User's actions may cause legal liability for User, third persons or
PG&E GT-NW.
4. User acknowledges that any submission under PG&E-trans(SM) may be
subject to a credit review and approval requirement as may be
applicable under PG&E GT-NW tariffs. User further acknowledges that it
may not exceed its previously determined credit limit with respect to
any bid. PG&E GT-NW may treat any bid that exceeds User's previously
determined credit limit, at PG&E GT-NW's option, as a bid in an amount
equal to the User's previously determined credit limit, or it may
regard such a bid as void and of no effect.
5. This Agreement shall become effective on the date first above written.
Unless earlier terminated as provided in paragraph 3, this Agreement
shall continue in effect for five (5) years thereafter, and shall
automatically continue for succeeding five (5) year terms unless
canceled by PG&E GT-NW at least thirty (30) days before the expiration
of each such term.
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6. If either party hereto shall fail to perform any obligation imposed
upon it by this Agreement, and such failure shall be caused, or
materially contributed to, by "force majeure," which means any act of
God, strikes, lockouts, or other industrial disturbances, acts of
public enemies, sabotage (whether or not performed by persons
affiliated with parties hereto), wars, blockades, insurrections, riots,
epidemics, landslides, lightning, electrical power failures,
telecommunication system failures, earthquakes, floods, storms, fires,
washouts, extreme cold or freezing weather, arrests and restraints of
rulers or people, civil disturbances, explosions, breakage of or
accident to machinery or lines of pipe, materials or equipment,
computer hardware or software failure, legislative, administrative or
judicial action which has been resisted in good faith by all reasonable
legal means, any acts, omissions or causes whether of the kind herein
enumerated or otherwise not reasonably within the control of the party
invoking this paragraph and which by the exercise of due diligence such
party could not have prevented the necessity for making repairs to,
replacing, or reconditioning machinery, hardware, software, equipment,
or pipelines, not resulting from the fault or negligence of the party
invoking this paragraph, such failure shall be deemed not to be a
breach of the obligation of such party, but such party shall use
reasonable diligence to put itself in a position to carry out its
obligations.
6.1 Nothing contained herein shall be construed to require either
party to settle a strike or lockout by agreeing against its
judgment to the demands of the opposing parties. No such cause
as described in paragraph 6 affecting the performance of
either party shall continue to relieve such party from its
obligation after the expiration of a reasonable period of time
within which by the use of due diligence such party could have
remedied the situation preventing its performance, nor shall
any such cause relieve either party from any obligation unless
such party shall give notice thereof in writing to the other
party with reasonable promptness; and like notice shall be
given upon termination of such cause. Further, inasmuch as
this Agreement relates solely to PG&E-trans(SM), no such cause
as described in paragraph 6 shall, by the force of this
Agreement, have any effect on other agreements or tariffs
affecting the parties; specifically, no such cause as
described in paragraph 6 shall affect User's obligation to pay
any demand charges otherwise due to PG&E GT-NW.
7. User agrees to defend, indemnify and hold harmless PG&E GT-NW, its
officers, agents and employees against any liability, loss or damage
whatsoever occurring in connection with or relating in any way to this
Agreement or the use of PG&E-trans(SM), including costs and attorneys'
fees, (where such liability, loss or damage results from any demand,
claim, action, cause of action, or suit brought by User or by any
person, association or entity, public or private, that is not a party
to this Agreement) to the extent such liability, loss or damage is a
direct or indirect result of any breach by User of this Agreement, or
is a direct or indirect result of any sole or concurrent negligence or
other tortious acts or omissions by User, its officers, agents or
employees in the performance of this Agreement or through its use of
PG&E-trans(SM).
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8. User acknowledges that use of PG&E-trans(SM) by User involves
transmission over the global communications network or Internet of
proprietary and confidential information of User. PG&E GT-NW cannot
guarantee the security of such information during its transmission by
User over the global communications network or Internet. PG&E GT-NW
will not be liable or responsible in any way to User for any losses,
damages, claims, costs, expenses or other obligations arising out of or
relating to any unauthorized access to or disclosure or use of such
information transmitted over the global communications network or
Internet. User further acknowledges and agrees that User is solely
responsible for the accuracy of all information and data that User
transmits to PG&E GT-NW, and PG&E GT-NW shall not be liable for any
such inaccuracies.
9. PG&E GT-NW does not represent or warrant that PG&E-trans(SM) will be
uninterrupted or error-free, that defects will be corrected, or that
PG&E-trans(SM) or the server that makes it available, are free of
viruses or other harmful components. PG&E GT-NW does not warrant or
represent that the use or the results of the use of PG&E-trans(SM) or
the materials made available as part of PG&E-trans(SM) will be correct,
accurate, timely, or otherwise reliable.
User specifically agrees that PG&E GT-NW shall not be responsible for
unauthorized access to or alteration of User's transmissions or data,
any material or data sent or received or not sent or received, or any
transactions entered into or through PG&E-trans(SM). User specifically
agrees that PG&E GT-NW is not responsible or liable for any
threatening, defamatory, obscene, offensive or illegal content or
conduct of any other party or any infringement of another's rights,
including intellectual property rights.
PG&E GT-NW MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY,
AVAILABILITY, TIMELINESS, AND ACCURACY OF PG&E-TRANS(SM) FOR ANY
PURPOSE. PG&E-TRANS(SM) IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY
KIND. PG&E GT-NW HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH
REGARD TO PG&E-TRANS(SM), INCLUDING ALL IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE
AND NON-INFRINGEMENT.
10. Neither party shall be liable to the other for any special, incidental,
exemplary or consequential damages arising from or as a result of any
delay, omission or error in the electronic transmission or receipt of
any information or data pursuant to this Agreement, or arising out of
or in any way connected with the use or performance of PG&E-trans(SM)
or related web sites, even if the other party has been advised of the
possibility of such damages and regardless of negligence or fault.
11. User agrees that the laws of the State of Oregon, without giving effect
to choice of law provisions, shall govern the interpretation and
enforcement of this Agreement. Any dispute or controversy arising from
this Agreement or from PG&E GT-NW's operation of PG&E-trans(SM),
whether arising in tort, contract or otherwise, shall be resolved as
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provided in this paragraph 11. During the process of dispute
resolution, the parties shall continue performance of their respective
obligations under the Agreement.
11.1 Prior to resorting to mediation or arbitration, the parties
agree to consult about any differences they may have under the
Agreement.
11.2 If the parties are unable to agree after consultation, either
party may request, in writing, that mediation be undertaken to
attempt to reach agreement. The parties agree to attempt to
mediate their dispute through the selection of a mutually
acceptable neutral mediator upon such terms and conditions as
they might agree. Each party agrees to pay their own costs
associated with mediation and each agrees to pay one-half of
the fees of the mediator.
11.3 If, after the period of thirty (30) days from the date of the
written notice requesting mediation, the parties are unable to
reach agreement through mediation, either party may call for
binding arbitration. Arbitration proceedings shall take place
in Portland, Oregon. The party calling for arbitration shall
serve notice in writing upon the other party, setting forth in
detail the question or questions to be arbitrated. The party
calling for arbitration shall, as part of its notice, propose
an arbitrator. The other party shall, within ten (10) days
after the receipt of such notice either agree to the proposed
arbitrator or reject the proposed arbitrator and may propose
an alternative arbitrator. If the alternative proposed
arbitrator is rejected, or the responding party refuses to
propose an arbitrator after ten (10) days, the party calling
for arbitration shall notify the Chief Judge of the United
States District Court for the District of Oregon and request
that he or she appoint an arbitrator qualified in matters
related to the interstate transportation of natural gas.
11.4 The arbitrator shall apply applicable provisions of Oregon law
and the commercial arbitration rules of the American
Arbitration Association (to the extent consistent with the
procedures provided for herein) in reaching his or her
determination. The arbitrator shall make a determination
within sixty (60) days of the arbitrator's appointment.
11.5 The determination by the arbitrator shall be binding on the
parties. The losing party shall pay all costs of the
arbitrator including fees and expenses. The prevailing party
shall be entitled to reasonable attorney's fees, costs and
expenses, including compensation for witnesses or consultants,
incurred in the arbitration.
11.6 The award of the arbitrator shall be drawn up in writing and
signed by the arbitrator and shall be final and binding on
both PG&E GT-NW and User, and PG&E GT-NW and User shall abide
by the award and perform the terms and conditions thereof.
Unless otherwise determined by the arbitrator, the fees and
expenses of the arbitrator shall be paid in equal proportion
by PG&E GT-NW and User.
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12. No waiver by either PG&E GT-NW or User of any default by the other in
the performance of any provisions of this Agreement shall operate as a
waiver of any continuing or future default, whether of a like or
different character.
13. PG&E GT-NW shall not be required to perform or continue PG&E-trans(SM)
on behalf of any User that fails to comply with the terms contained in
this Agreement, including applicable tariffs.
14. PG&E GT-NW will provide User with a unique identification code,
password and, in some cases depending upon the nature of User's access
rights, a signature code, each of which shall be unique to each of
User's authorized employees and without which User may not access
PG&E-trans(SM). User shall complete an executed Appendix B for each of
User's employees as designated by User for PG&E-trans(SM) access. User
shall take all measures to maintain the secrecy and confidentiality of
the password, identification code and, if applicable, signature code,
to be provided to User. User acknowledges that a change in its
password, identification code, or signature code may only be obtained
from PG&E GT-NW by User's submission of a written request on Appendix
B. User is entirely responsible for maintaining the confidentiality of
its password, identification code and, if applicable, signature code
(collectively "access codes") that uniquely identify the User and the
employee authorized to act on behalf of the User. Furthermore, User is
entirely responsible for any and all activities that occur under its
account using the access codes. User acknowledges that it may, from
time to time, terminate employees with knowledge of the access codes
and agrees to take all steps to change one or more of the access codes
to protect against unauthorized use of its account by submitting a
revised Appendix B for that employee. User further agrees to notify
PG&E GT-NW immediately of any unauthorized use of its account or any
other breach of security. User acknowledges and consents that PG&E
GT-NW, as the system operator and owner of PG&E-trans(SM), shall have
access to, and the ability to review to the fullest extent allowed by
law, all messages, electronic mail, files and other communications of
any sort on PG&E-trans(SM), whether or not such communications are
designated as private or confidential.
15. User agrees to exercise due and reasonable care in the use of
PG&E-trans(SM). User is solely responsible for obtaining all hardware,
software, telecommunications lines and Internet or global
communications network access that may be required to access
PG&E-trans(SM).
16. User acknowledges that PG&E GT-NW is the owner of all intellectual
property rights to PG&E-trans(SM). PG&E-trans(SM) is intended for the
posting, remarketing, and management of natural gas transportation and
storage capacity on the natural gas pipeline owned by PG&E GT-NW. User
understands that PG&E GT-NW is making access to PG&E-trans(SM)
available to User for no direct charge, except for telephone or
Internet access charges, which remain User's responsibility.
17. In the event that User requests additional services or alternative
access relating to PG&E-trans(SM), the parties may mutually agree on
the pricing for such services in a separate
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agreement. Any such additional services or alternative access relating
to PG&E-trans(SM) are otherwise subject to the terms of this User
Agreement.
18. User agrees that PG&E GT-NW has extended access to PG&E-trans(SM) to
User because of the specific business relationship between User and
PG&E GT-NW, and in some cases because of User's particular credit
history. This personal Agreement between User and PG&E GT-NW may not be
assigned by User without the prior consent of PG&E GT-NW, which consent
shall not unreasonably be withheld.
19. All notices required or permitted to be given with respect to this
Agreement shall be given by mailing the same postage prepaid, or given
by facsimile or by courier, to the addressee party at such party's
address as set forth in Appendix A. Either party may change its address
for the purpose of notice hereunder by giving the other party no less
than five (5) days' prior written notice of such new address in
accordance with the preceding provisions.
20. This Agreement may be executed in any number of original counterparts,
all of which shall constitute one and the same instrument.
21. Any provision of this Agreement that is determined to be invalid or
unenforceable will be ineffective to the extent of such determination
without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such remaining provisions.
PG&E GAS TRANSMISSION, PACIFIC GAS & ELECTRIC CO.
NORTHWEST CORPORATION (PG&E CORE)
By: JAMES E. ROBBINS By: E. JAMES MACIAS
---------------------------- --------------------------
Name: James E. Robbins Name: E. James Macias
Title: Director, Market Services Title: SVP & General Mgr, GT&S
(MUST BE SIGNED BY AN
OFFICER OF THE
COMPANY)
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APPENDIX A
ADDRESS FOR NOTICE
If to PG&E GT-NW:
PG&E Gas Transmission, Northwest Corporation
2100 S.W. River Parkway
Portland, Oregon 97201
Telephone: (503) 833-4301
Facsimile: (503) 833-4900
Attention: James E. Robbins
If to User:
Name: Pacific Gas & Electric Co. (PG&E CORE)
Address: 77 Beale Street - M/C B5F
San Francisco, CA 94105
Telephone: (415) 973-9035
Facsimile: (415) 973-9213
Attention: David W. Clare