|
and Participating Customers' obligations hereunder and/or injunctive relief to continue to
<br /> provide Retail Electric Supply hereunder.
<br /> 6.2.2 Rights and Remedies for a FES Event of Default. Subject to other provisions of this
<br /> Agreement, if FES is the defaulting Party hereunder, so long as such FES Event of Default shall
<br /> have occurred and be continuing, Community shall have the right to (i) designate an Early
<br /> Termination Date, no earlier than the day such notice is effective and no later than 20 days after
<br /> such notice is effective, and to terminate this Agreement on the Early Termination Date, (ii)
<br /> suspend performance under this Agreement, and/or (iii) have all rights available at law and in
<br /> equity. In addition to the foregoing remedies, Community shall have the right to seek the
<br /> remedies of specific performance and/or injunctive relief.
<br /> Notwithstanding any other provision of this Agreement, the remedies set forth in Section 4.3
<br /> shall be the sole and exclusive remedies for any failure of FES to deliver Retail Electric Supply.
<br /> As long as FES is supplying Retail Electric Supply to the Participating Customers at the price
<br /> and upon the terms and conditions of this Agreement, Community shall not have the right to
<br /> terminate this Agreement, suspend performance or pursue other remedies, and FES shall have no
<br /> liability to Participating Customers for damages.
<br /> 6.2.3 Duty to Mitigate. Each Party agrees that it has a duty to mitigate damages and covenants
<br /> that it will use commercially reasonable efforts to minimize damages it may incur as a result of
<br /> the other Party's failure to perform pursuant to this Agreement.
<br /> ARTICLE 7
<br /> FORCE MAJEURE
<br /> 7.1 Excused Failure to Comply. Neither Party shall be considered to be in default in the
<br /> performance of its obligations under this Agreement, if its failure to perform results directly or
<br /> indirectly from a Force Majeure Event. If despite its commercially reasonable efforts, either
<br /> Party is unable, wholly or in part, to meet its obligations under this Agreement due to a Force
<br /> Majeure Event, the obligations of each Party, other than the obligation to snake payments due for
<br /> performance rendered hereunder, so far as they are affected by such Force Majeure Event, shall
<br /> be suspended during such period of the Force Majeure Event. The Party claiming excuse due to
<br /> a Force Majeure Event shall exercise commercially reasonable efforts and due diligence to
<br /> remove the inability to perform as soon as reasonably possible so that the affected period shall be
<br /> no longer than that necessarily affected by the Force Majeure Event and shall exercise
<br /> commercially reasonable efforts and due diligence to mitigate the effects of the Force Majeure
<br /> Event. Nothing contained in this Section 7.1 shall be construed as requiring a Party to settle any
<br /> strike or labor dispute in which it may be involved.
<br /> 7.2 Force Majeure Event. For purposes of this Agreement, a "Force Majeure Event" shall
<br /> mean any non-economic cause beyond the reasonable control of the Party affected and shall
<br /> include, but not be limited to, Acts of God, winds, floods, earthquakes, storms, droughts, fires,
<br /> pestilence, destructive lightning, hurricanes, washouts, landslides, tornadoes and other natural
<br /> catastrophes; strikes, lockouts, labor or material shortage, or other industrial disturbances; acts of
<br /> the public enemies, epidemics, riots, civil disturbances or disobedience, sabotage, wars or
<br /> blockades; the failure of facilities, governmental actions such as necessity to comply with any
<br /> court order, law, statute, ordinance or regulation promulgated by a governmental authority, a
<br /> change in law or court order; provided, however, that any such discretionary acts, failure to act
<br /> or orders of any kind by Government Aggregator may not be asserted as a Force Majeure Event
<br /> 9
<br />
|