EXHIBIT 10.7
Pacific Gas and Electric Company
Electronic Commerce System
User Agreement
This agreement ("Agreement") is between Pacific Gas and Electric
Company ("PG&E"), and the party identified below (hereafter "User").
WHEREAS, PG&E has established an electronic commerce system and one
or more websites or other Internet-based electronic transaction and scheduling
facilities (and may establish additional such facilities). (The electronic
commerce system, website(s) and facilities are referred to herein collectively
as the "ECS.") Included in the ECS is the capability to do the following
transactions: enter into a Gas Transmission Service Agreement ("GTSA") and
Exhibits thereto; enter into a Noncore Balancing Aggregation Agreement ("NBAA");
conduct natural gas pipeline related business, and trade on the California Gas
Transmission ("CGT") Trading Platform, including without limitation: (i)
obtaining natural gas transportation, storage, parking and lending services
provided pursuant to a GTSA on the PG&E natural gas pipeline system
(collectively "Service Transactions"); (ii) scheduling of such services
("Scheduling Transactions"); (iii) trading of natural gas imbalances; and (iv)
on-line accessing of pipeline related information. (The Service Transactions and
Scheduling Transactions are also collectively referred to herein as
"Transactions.")
WHEREAS, User desires to access and use the ECS; and PG&E is willing
to provide such access subject to the terms and conditions set forth herein.
NOW THEREFORE, for consideration, the receipt and adequacy of which
are hereby acknowledged, the parties intending to be legally bound, agree as
follows:
1. ACCESS AND USE CONDITIONS
After execution of this Agreement, and subject to its terms and
conditions, PG&E agrees to provide User with on-line access to the ECS,
and User understands and agrees to the following:
1.1. User shall complete and execute the "Access Request Form," attached
hereto as Exhibit B, identifying authorized employees or agents of
User, designated by User to access and use the ECS and execute
transactions on behalf of User. PG&E will issue to User an
identification code ("User ID") for each of User's employees and
agents identified on Exhibit B, to enable User to access and use the
ECS. Any and all use and/or access of the ECS with any of the User
IDs issued to User shall be deemed and construed to be use or access
by User. User shall strictly limit the use of the User IDs to those
employees and agents of User who are identified on Exhibit B. User
shall immediately notify PG&E when
an individual identified on Exhibit B ceases to be authorized by
User to use his or her User ID, by submitting a modified Exhibit B
to PG&E.
1.2. User shall take all measures to maintain the confidentiality of the
User IDs and of all passwords used to access the ECS ("Passwords").
User shall be solely responsible for the assignment, security and
use of the User IDs and Passwords and the control and monitoring of
such use. PG&E shall have no responsibility for any of the foregoing
and no liability for or arising from the use of the User IDs or
Passwords by anyone. User shall be solely responsible and liable for
any and all acts and omissions with respect to access or use of the
ECS by anyone using the User IDs, including, but not limited to, the
execution of Transactions.
1.3. User agrees to indemnify and hold PG&E harmless from and against all
damages, losses, and liabilities arising out of or in connection
with any breach of confidentiality, misuse or unauthorized use of
any User ID issued by PG&E to User, regardless of whether User has
notified PG&E as required by paragraph 1.1 above.
1.4. User will access and use the ECS (including, but not limited to,
execution of Transactions) solely for its own internal business
purposes and in accordance with the terms and conditions of this
Agreement, any procedures established by PG&E with respect to the
access or use of the ECS and any other terms and conditions
specified or referred to on the ECS from time to time. User
understands and agrees that User's use of the ECS may be limited or
modified by the terms of licenses or other agreements between PG&E
and third parties. User further agrees that PG&E may modify or limit
the use of the ECS at any time and without notice. PG&E may, in its
sole discretion, terminate, restrict, or suspend User's access to
and use of the ECS.
1.5. User acknowledges that use of the ECS by User involves transmission
over the worldwide communications network or Internet of
proprietary, confidential and/or time sensitive information of User.
User understands the risks associated with the transmission of such
information by User over the worldwide communications network or
Internet. User agrees that PG&E shall 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 delay in
transmission, disclosure or use of such information or data
transmitted over the worldwide 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, and PG&E shall not be responsible or liable for any such
inaccuracies or their effects.
1.6. User further agrees that PG&E shall not be responsible for delays in
sending or receiving User's transmissions or data, for unauthorized
access to or alteration of User's transmissions or data, any
transmission, information or data sent or received or not sent or
received, or any Transactions entered into or through the
ECS. User specifically agrees that PG&E is not responsible or liable
for any threatening, defamatory, obscene, offensive or illegal
content or conduct of any other party or any infringement of any
other party's rights, including intellectual property rights.
1.7. User understands and agrees that (i) User is solely responsible for
acquiring and ensuring that it possesses sufficient Internet access
speed capability to adequately conduct business on the ECS, and (ii)
User shall be solely responsible for all costs associated with its
accessing and using the ECS.
1.8. User acknowledges and consents that PG&E, as the ECS operator, shall
have access to and the right to review, to the fullest extent
allowed by law, files and other communication of any sort on the ECS
whether or not such communications are designated as private or
confidential.
2. BINDING CONTRACTS
User acknowledges that by using the ECS, it may enter into binding
contracts with PG&E and with third parties. User agrees that (i) any and
all access or use of the ECS using the User IDs will be governed by this
Agreement; (ii) any nomination or offer placed, any contract terms,
conditions or exhibits accepted or confirmed, and any Transaction
executed, on the ECS will be deemed to be "in writing," to have been
signed," or be an "executed" writing; and (iii) accepting or entering into
a Transaction by using the ECS, as it now exists or may in the future be
modified, and subject to applicable tariffs, shall constitute a written
contract (a "Contract"). With limitation of the foregoing, User agrees
that it will be bound by any and all contract terms and conditions,
including, but not limited to, the GTSA and NBAA, and by any and all
nominations, offer, trades, or other Transactions executed, accepted or
confirmed on the ECS through a "click" agreement by any individual using
the User ID. By executing this Agreement, User agrees that it adopts as
User's signature any such "click agreement," defined for purposes of this
Agreement as "clicking" on the designated space on the ECS (or other
action on the ECS specified by PG&E), and such "click agreement" 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 the ECS. User agrees and warrants that any
employee or agent of User using the ECS shall have all necessary power and
authority to use the ECS and enter into Transactions as herein provided.
User warrants for itself and its successors and assigns that for each
Transaction that User may enter into by using the ECS, User shall have all
right, title, power and authority necessary to honor that Contract.
2.1. User and PG&E agree that this Article 2 is intended to benefit other
users accessing the ECS, and that such other users are third party
beneficiaries of this Article 2. User and PG&E do not intend hereby
that other users are or will be third party beneficiaries of any
other provisions of this Agreement.
3. APPLICABLE TARIFFS, TERMS AND CONDITIONS
User agrees that it shall be bound by all the terms and conditions of this
Agreement, the terms and conditions accepted on the ECS by a click
agreement in accordance with Article 2 above, as well as any and all
applicable tariffs currently in effect for PG&E as approved by the
California Public Utilities Commission ("CPUC") and/or the Federal Energy
Regulatory Commission ("FERC"), or which may hereafter be implemented, and
all amendments thereof. Such tariffs are matters of public record, which
User represents that it has reviewed and will review in the future.
4. TRANSACTIONS AND CONFIRMATIONS
4.1. After User has received the User ID(s) and has executed the
applicable contracts (and subject to applicable tariffs), User may
enter into Transactions, including service elections under a GTSA
executed by User ("User GTSA"), as follows:
4.1.1. GTSA Service Elections: User shall enter into Transactions,
i.e., elect services under User's GTSA, including Gold Coast
Transportation Services, Golden Gate Market Center Services,
and Storage Services, and PG&E may accept and authorize such
service elections, by following the procedures set forth in
paragraph 4.1.2 of this Agreement. Such procedures in
paragraph 4.1.2 shall be used instead of the procedures set
forth in the User GTSA providing that a service election
shall be entered into through, and evidenced by, a "hard
copy" of Exhibits A through I (Form No. 79-866), or any one
of them; and providing for a written signature by User and
countersignature by PG&E to such Exhibits A through I.
4.1.2. Service Transaction: User may telephone a PG&E CGT
Representative to enter into a Service Transaction.
PG&E may accept or reject User's offer or order in PG&E's
sole discretion. Service Transactions shall be deemed
executed at the time that PG&E first signifies its acceptance
of User's offer or order, which in most instances will occur
when User enters into a Transaction with PG&E orally by
telephone, as documented by an audio recording. The audio
recording of Transactions between User and PG&E shall
constitute evidence of such Transactions, and User hereby
consents to the recording of all Transactions between User
and PG&E.
After User and PG&E have entered into a Service Transaction
orally by telephone, PG&E will provide notice to User by
e-mail that an electronic exhibit confirming the specific
business terms of that Service Transaction are posted on the
ECS (the "Electronic Exhibit"). The terms of the Electronic
Exhibit shall be valid and binding on User, unless User deems
any of the terms of the Electronic Exhibit to be stated
incorrectly
and notifies PG&E of the incorrect term(s) as soon as possible
but no later than within five (5) business days (the "Response
Period") following receipt of the e-mail notice. If PG&E and
User disagree as to the correct terms of the Electronic
Exhibit, the audio recording of the transaction shall prevail
and shall constitute evidence of the Transaction and its term.
If the term or terms in dispute cannot be determined from such
recording, and the parties do not resolve the dispute within
two (2) business days, the Transaction shall be deemed void.
Notwithstanding the foregoing, if User does not notify PG&E of
an error in the Exhibit within the Response Period, or if User
nominates, takes delivery, or performs any other act
indicating performance of or under the Service Transaction,
the Electronic Exhibit shall be deemed confirmed by User,
absent an obvious error in the Electronic Exhibit.
4.1.3. Scheduling Transactions: After User has executed any
necessary Service Transactions, User may submit nominations
for transportation, parking, lending, storage and other
services, on-line, using the ECS.
4.1.4. Imbalance Trading: User may utilize the ECS, subject to the
terms, conditions, and limitations of this Agreement, to
confirm a trade, or to confirm a trade with another User, of
operating or cumulative imbalances, as those are defined and
specified in PG&E's CPUC-approved rate Schedule G-BAL. User
acknowledges that such trades do not involve PG&E as a party
to the trade. User agrees that it may enter into such trades
as set forth in Schedule G-BAL and may utilize the ECS to
confirm the trade and to notify PG&E of the trade, provided,
however, that User strictly follows the protocols, directions
and rules for confirming trades as set forth in the ECS.
5. FEES AND TERMS OF PAYMENT
5.1. User understands that initially (and subject to the provisions of
this Article 5) PG&E is making access to the ECS available to User
for no direct charge, except for telephone access charges and any
Internet access fees, which shall be and remain User's
responsibility.
5.2. PG&E reserves the right to initiate and/or modify fees for the use
of the ECS, subject to Commission approval. User has the right to
discontinue use of the ECS at that time or continue using the ECS
subject to such fees.
6. TITLE AND RIGHTS TO ECS, INFORMATION AND SERVICES
6.1. User acknowledges that PG&E and its licensors are the owners of all
intellectual property rights in and to the ECS, the software used in
connection therewith, and all information contained thereon or
related thereto, and User shall have no right, title, or interest in
any of these.
6.2. User shall not copy, reverse-engineer, modify, or otherwise
manipulate, or make available to any other party, all or any portion
of the ECS or any software or information provided or accessed in
connection with the ECS.
6.3. PG&E shall have the right to modify the ECS, User IDs, software, or
communication access, and to terminate access to any or all of
these, at any time. In the event of such a termination or
modification, or termination of this Agreement pursuant to Article 7
below, PG&E shall not be liable for any costs, losses or damages,
including, but not limited to, lost profits or revenues.
7. TERMINATION
7.1. This Agreement shall become effective on the date of its execution
by PG&E and shall remain in effect until terminated as provided
herein.
7.2. Either party may terminate this Agreement at its sole discretion by
giving the other party at least thirty (30) days' prior written
notice.
7.3. PG&E may terminate this Agreement immediately if User breaches this
Agreement and does not cure the breach within fourteen (14) days of
receipt of a written notice from PG&E, or if User fails to pay any
required charges when due, fails to meet PG&E's applicable credit
requirements, or fails to comply with the provisions of any tariff
or any other contract entered into in connection with the ECS or
this Agreement.
7.4. Upon the termination of this Agreement, PG&E will terminate User's
access to the ECS and User shall discontinue using the software
manuals, and other items ("Property" of PG&E or third parties) in
User's possession and shall destroy all such Property, if any is in
User's possession.
7.5. The provisions of Paragraphs 7.3 and 7.4, and Articles 6, 8 and 10
shall survive termination of this Agreement by either party; and all
articles or paragraphs of this Agreement which by their nature are
intended to survive termination or expiration of this Agreement
shall also survive. This Agreement shall also remain in effect with
respect to any transactions effected prior to such termination.
8. DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION
8.1. PG&E DOES NOT REPRESENT OR WARRANT THAT THE ECS OR ITS USE WILL BE
UNINTERRUPTED OR FREE OF DEFECTS, ERRORS OR MALFUNCTIONS, OR THAT
DEFECTS WILL BE CORRECTED, OR THAT THE ECS OR THE SERVER THAT MAKES
IT AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PG&E
DOES NOT WARRANT OR REPRESENT THAT THE USE OR THE RESULTS OF THE
USE OF THE ECS OR THE TRANSACTIONS MADE AVAILABLE AS PART OF THE ECS
WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE.
8.2. USER UNDERSTANDS, AND ACCEPTS THAT (i) PG&E MAKES NO WARRANTY
WHATSOEVER TO USER REGARDING THE ECS OR ITS AVAILABILITY OR THE
RESULTS OF USER'S USE OF THE ECS, OR REGARDING ANY INFORMATION USED
OR ACESSED IN CONNECTION THEREWITH; AND (ii) THE ECS IS PROVIDED BY
PG&E ON AN "AS IS" BASIS AT USER'S SOLE RISK, AND PG&E EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES (WHETHER EXPRESS, IMPLIED, OR
STATUTORY), INCLUDING THE WARRANTIES OF MERCHANTABILITY,
NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND SATISFACTORY
QUALITY.
8.3. USER UNDERSTANDS AND AGREES THAT PG&E SHALL NOT BE LIABLE TO USER OR
TO ANYONE BRINGING A CLAIM AS A RESULT OF OR IN CONNECTION WITH
USER'S USE OF THE ECS (OR OF ANY SOFTWARE, INFORMATION OR OTHER
ITEMS RELATING THERETO), FOR: (i) ANY LOSSES OR DAMAGES WHATSOEVER
INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL,
COMPENSATORY, INCIDENTAL OR CONSEQUENTIOAL DAMAGES INCLUDING, BUT
NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS, REVENUE OR PROFITS
OR FAILURE TO REALIZE SAVINGS OR ANY OTHER ECONOMIC OR COMMERCIAL
LOSS OF ANY KIND, OR (ii) ANY CLAIM OR DAMAGES RESULTING FROM A
CLAIM AGAINST THE USER BY ANY THIRD PARTY, ARISING IN ANY WAY IN
CONNECTION WITH THIS AGREEMENT, OR USER'S USE OF THE ECS, WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
WARRANTY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES ARE
FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF PG&E AND THIRD-PARTY
SOFTWARE LICENSORS UNDER OR ARISING FROM THIS AGREEMENT, IF ANY,
SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AVERAGE CHARGE PAID
BY USER TO PG&E FOR A SINGLE DAY'S GAS TRANSPORTATION TRANSACTIONS
DURING THE TWELVE (12) MONTHS PERIOD PRIOR TO THE DATE ON WHICH THE
CAUSE OF ACTION AROSE, OR $10,000 (TEN THOUSAND DOLLARS), WHICHEVER
IS THE LESSER AMOUNT.
8.4 User shall hold harmless, protect, defend and indemnify PG&E from
and against any and all claims, actions, demands, suits, judgments,
damages, losses, costs, including attorneys' fees, and liabilities
resulting from or arising out of or in connection with (i) use of or
access to the ECS or to any software, information, data (or other
items relating thereto) by User, or by any person obtaining access
to the ECS through User or a User ID, whether or not User has
authorized such access, or (ii) any breach by User of any terms or
conditions of this Agreement, or
(iii) any act or omission, or willful misconduct, of User, its
officers, agents or employees or any person obtaining access to the
ECS through User (whether or not User has authorized such access) in
the performance of this Agreement or the use of the ECS regardless
of any negligence of PG&E, whether active or passive, or (iv) any
actions taken or not taken by User based on its access to or use of
the ECS.
8.5. As used in this Article 8, "PG&E" shall include the directors,
officers, employees and agents of PG&E.
9. VIRUSES
Each party agrees to make reasonable efforts to notify the other promptly
if there is any indication that its own computer systems, or any part
thereof, have come into contact with any "computer virus." The term
"computer virus" as used herein shall mean any computer software program
or portion of a program that is foreign to the host computer system and
has been introduced into the host computer system without the knowing
consent of the operator of the ECS including without limitation a virus
received over the Internet.
10. SYSTEM OR SOFTWARE MALFUNCTIONS
If User is notified or in any other way becomes aware of a malfunction,
failure or stoppage of the ECS, related software, or the operation of
either of these, User agrees to use conventional methods of communication,
such as facsimile transmissions, to conduct the business for which the ECS
is intended, for as long as the malfunction, failure or stoppage continues
to exist.
11. MISCELLANEOUS PROVISIONS
11.1 Force Majeure: Neither PG&E nor User shall be considered in default
in the performance of its obligations under this Agreement, except
obligations to make payments hereunder when due, to the extent that
the performance of any such obligation is prevented or delayed by
any cause, existing or future, which is beyond the reasonable
control of the affected party. For purposes of this Agreement,
events beyond the reasonable control of a party shall include, but
not be limited to, failures or malfunctions of the ECS or of any
hardware or software used in connection therewith or furnished
pursuant to this Agreement (including third-party software and
software owned and/or operated by PG&E).
11.2. Assignment and Delegation: User acknowledges and agrees that PG&E
has extended access to the ECS to User because of the specific
business relationship between User and PG&E, and in some cases
because of User's particular credit history. This Agreement may not
be assigned by User without the prior written consent of PG&E.
11.3. Choice of Law: User agrees that the laws of the State of California,
without giving effect to choice of law provisions, shall govern the
interpretation and enforcement of this Agreement
11.4. Dispute Resolution: Any dispute arising under or related to this
Agreement, which dispute cannot be settled by the parties within a
reasonable time, may be submitted by either Party to binding
arbitration in accordance with the rules of the American Arbitration
Association. All disputes to be arbitrated shall be decided by one
arbitrator to be appointed by the parties. If the parties fail to
agree upon an arbitrator within thirty (30) days after written
notice of arbitration has been given by either party to the other,
the presiding judge of the Superior Court of the State of California
and for the City and County of San Francisco shall appoint an
arbitrator upon the request of either party. Venue for arbitration
will be the City and County of San Francisco, California. The
decision of the arbitrator shall be final and binding upon the
parties hereto and judgment thereon may be entered in any court of
competent jurisdiction. The cost of the arbitrator shall be borne
equally by User and PG&E. Nothing contained in this paragraph 11.4
shall preclude either party from seeking equitable relief or
remedies in a court of competent jurisdiction. In reaching a
decision herein, arbitrator shall adhere to and apply substantive
California law. User agrees that for any violation of any provision
of this Agreement, a restraining order and/or injunction may be
issued against User.
11.5. No Waiver: No waiver, by either PG&E or User, of any default by the
other in the performance of any provision of this Agreement shall
operate as a waiver of any continuing or future default, whether of
a like or different character.
11.6. Notices: Except as otherwise required by law, all notices relating
to this Agreement, including notices of arbitration and
notifications pursuant to Article 4.1.1, shall be in writing and
given by means of personal delivery, facsimile transmission, or mail
(with return receipt requested). Any notice given as stated in this
paragraph 11.6 shall be deemed duly given as follows: upon delivery,
if delivered personally; upon transmission, if sent by facsimile; on
the date of receipt, if sent by mail, return receipt requested. All
notices shall be addressed, and sent to the addresses or facsimile
numbers, as set forth below:
USER: PG&E:
PG&E Gas Transmission - Northwest Corp. Pacific Gas and Electric Company
2100 SW River Parkway Products & Sales
Portland, OR 97201 Mail Code N15A
Attention: Jay Story P.O. Box 770000
San Francisco, CA 94177
Fax No.: (503) 833-4396 Attention: Products and Sales
Telephone No.: (503) 833-4309
Email Address: jay.story@neg.pge.com Fax No.: (415) 973-9247
Telephone No.: (415) 973-0474
Email Address: cgtpscontracts@pge.com
The parties may change their addresses, or any part thereof, by a notice
pursuant to this Article 11.6.
12. CAPTIONS
All captions, titles, subject headings, and similar items are provided for
the purpose of reference and convenience and are not intended to affect
the meaning or interpretation of the content or scope of this Agreement.
13. ATTACHMENTS
The following attachments to this Agreement are incorporated herein by
this reference: Exhibit A - "Third Party Software" and Exhibit B "Access
Request Form."
14. EXECUTION
Each party represents that the individual executing this Agreement for
such party has been duly authorized to do so.
PG&E Gas Transmission - Northwest Corp. Pacific Gas and Electric Company
By: JAY STORY By: DANIEL F. THOMAS
------------------------------------ -----------------------------------
(Signature) (Signature)
Name: Jay Story Name: Daniel F. Thomas
Title: Director, Gas Control & Transp. Title: Director, Products and Sales
Srv.
Date of Signature: 9/28/01
Date of Signature: 9/18/01
Electronic Commerce System User Agreement
EXHIBIT A
Third-Party Software
The following third-party software packages will be downloaded upon each login
in order to operate the ECS:
Vendor: Citrix Systems, Inc.
Package: Metaframe
Version: 1.8
Electronic Commerce System User Agreement
EXHIBIT B
Access Request Form
Company Name: PG&E Gas Transmission - Northwest Corporation
User requests access to the Electronic Commerce Systems (ECS) for the following
designated individuals who are authorized by User to access and use the ECS and
enter into binding contracts on behalf of User.
Name: Marvin Hoffman
Title: Transportation Coordinator
E-Mail Address: marvin.hoffman@neg.pge.com
Telephone No. (503) 833-4319
Mother's maiden name (for phone verification): Jacobson
User Code:____________(PG&E Use)
Name: Sue Crannell
Title: Transportation Coordinator
E-Mail Address: sue.crannell@neg.pge.com
Telephone No. (503) 833-4317
Mother's maiden name (for phone verification): Fricia
User Code: ____________(PG&E Use)
Name: Brian Hart
Title: Transportation Coordinator
E-Mail Address: brian.hart@neg.pge.com
Telephone No. (503) 833-4315
Mother's maiden name (for phone verification): Goldsmith
User Code:____________(PG&E Use)
Names: Emily Roberts
Title: Transportation Coordinator
E-Mail Address: emily.roberts@neg.pge.com
Telephone No. (503) 833-4316
Mother's maiden name (for phone verification): Marggi
User Code:____________(PG&E Use)
Name: Ruth Clark
Title: Transportation Coordinator
E-Mail Address: ruth.clark@neg.pge.com
Telephone No. (503) 833-4314
Mother's maiden name (for phone verification): Goulet
User Code:____________(PG&E Use)