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Natural Gas Purchase Contract: ACAP Master Terms and Conditions
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<br />1. ELIGIBILITY: This Contract is exclusively for mercantile customers
<br />that consume more than 500 MCFs per year.
<br />2. NATURAL GAS SUPPLY: Seller will supply and deliver to Buyer
<br />the full natural gas requirements for all Accounts under this Contract
<br />and Buyer will accept and pay for all such deliveries according to this
<br />Contract. Seller will act as Buyer’s agent for the limited purposes of
<br />working with Buyer’s NGDC in order to: (a) obtain the Accounts’ us-
<br />age, billing, and payment histories; (b) effect the transfer of natural
<br />gas supply service to Seller; and (c) perform Seller’s obligations un-
<br />der this Contract. Buyer will execute all documents and be responsi-
<br />ble for all services and equipment required by the NGDC in order for
<br />Buyer to receive service under this Contract. Buyer understands that
<br />there may be delays in starting gas supply due to the NGDC’s enroll-
<br />ment requirements and will not hold Seller responsible for any such
<br />delays.
<br />3. BILLING: The NGDC will issue consolidated monthly invoices
<br />which will contain Seller’s natural gas charges, plus applicable taxes
<br />and all of the NGDC’s distribution and other applicable charges.
<br />Buyer will pay to the NGDC the entire amount of each natural gas bill
<br />under the NGDC’s payment terms and conditions. Late charges will
<br />apply for all past-due amounts owed to Seller at the rate set forth in
<br />the NGDC’s tariff for its charges. Seller reserves the right to invoice
<br />Buyer directly for: (a) Seller’s charges only, plus applicable taxes; or
<br />(b) for the NGDC’s charges, as well as Seller’s charges, plus all ap-
<br />plicable taxes. If Seller invoices Buyer directly, payment will be due
<br />in full on or before the 20th calendar day following the invoice date
<br />and late charges will apply for all past-due amounts at a rate of 1.5%
<br />per month. The NGDC is solely responsible for reading Buyer’s me-
<br />ter(s), and all disputes that Buyer has with respect to meter readings
<br />and related adjustments will be addressed by Buyer solely to the
<br />NGDC.
<br />4. LIMITATION OF LIABILITY: Seller will not be liable for any losses
<br />arising from Buyer’s use of natural gas or for losses arising from any
<br />pipeline or the NGDC, including but not limited to: operations and
<br />maintenance of the NGDC's system; any NGDC interruption of ser-
<br />vice; NGDC termination of service; NGDC events of force majeure;
<br />or deterioration of NGDC service. Except as otherwise set forth in
<br />this Contract, neither party will be liable for any losses arising from
<br />the use of natural gas or any indirect, consequential, special, or puni-
<br />tive damages, whether arising under contract, tort (including negli-
<br />gence or strict liability), or any other legal theory.
<br />5. CREDIT: Upon Seller’s reasonable request, Buyer will provide to
<br />Seller financial statements and other credit-related information, all of
<br />which will be treated as confidential by Seller. If Seller reasonably
<br />deems Buyer’s financial condition inadequate to extend credit for gas
<br />sales, including the risk associated with a fixed price under this con-
<br />tract, Seller may require security sufficient to cover volumes for the
<br />two largest months listed under “Full Contract Volumes” in the form
<br />of either a deposit or an irrevocable letter of credit. Furthermore, if
<br />Buyer (i) makes an assignment or general contract for the benefit of
<br />creditors, (ii) defaults in any payment or other obligation to Seller (in-
<br />cluding any obligation to provide security as provided above), (iii) files
<br />a petition or acquiesces in the commencement of a case under any
<br />bankruptcy or similar law for the protection of creditors or has such
<br />petition filed against it, or (iv) is unable to pay its debts as they fall due
<br />or fails to pay its obligations as required under this contract according
<br />to the payment terms, then Seller may suspend deliveries and termi-
<br />nate this Contract 10 days after delivering written notice to Buyer.
<br />Seller’s rights under this credit section are in addition to all other rem-
<br />edies available under this contract.
<br />6. CROSS DEFAULT: If Buyer is a party to more than one natural gas
<br />purchase contract with Seller, a breach by Buyer under such other
<br />contract(s) may be treated by Seller as a breach by Buyer under this
<br />Contract.
<br />7.DAMAGES. If (a) Buyer terminates any or all accounts under this
<br />Contract before the expiration of any Term; or (b) Seller terminates
<br />this Contract as to any or all Accounts before the expiration of any
<br />Term as a result of Buyer’s breach of this Contract, or (c) the NGDC
<br />terminates any or all Accounts from under this Contract before the
<br />expiration of any Term as a result of late or non-payment, then Buyer
<br />will pay to Seller Early Termination Damages, if any, as set forth on
<br />Page 1. Seller may increase the price charged to Buyer for accounts
<br />that have not defaulted in order to cover the charges described
<br />above; in such instance, Seller will send to Buyer an informational
<br />invoice to supplement the NGDC's bill. Nothing herein limits Buyer’s
<br />obligation to pay for all gas delivered as metered by the NGDC. If
<br />Seller fails to perform its delivery obligations under this contract,
<br />Seller will pay to Buyer the amount equal to the positive difference, if
<br />any, between Buyer's reasonable cost of cover minus the then-cur-
<br />rent price for all hedged volumes Seller failed to deliver. The prevail-
<br />ing party in any lawsuit under this contract will be entitled to collect
<br />from the breaching party the prevailing party's costs of enforcing this
<br />contract, including reasonable attorneys’ fees and all other litigation
<br />expenses.
<br />8.WARRANTY: Seller warrants that all gas delivered to the NGDC
<br />for its distribution to Buyer will meet the NGDC’s quality standards
<br />and that title to such gas is free from liens and adverse claims. Seller
<br />makes no other warranties or representations of any kind, expressed
<br />or implied, including any warranty of merchantability or warranty that
<br />the goods are fit for any particular purpose.
<br />9.REGULATORY: The choice program is subject to ongoing uti li-
<br />ties commission jurisdiction and NGDC rules. Seller may pass
<br />through to Buyer any additional charges/ fees imposed on suppliers
<br />through a regulatory and/or utility proceeding. If the choice program
<br />is terminated or materially changed, this Contract may b e modified
<br />accordingly or terminated by Seller without penalty to either party.
<br />10. ASSIGNMENT: This Contract may be assigned by Buyer only
<br />with express written consent of Seller, which consent will not be un-
<br />reasonably withheld, conditioned, or delayed.
<br />11. WAIVER: Failure to enforce any provision of this Contract will not
<br />be deemed a waiver of any right to do so, and an express waiver of
<br />any breach will not operate as a waiver of any other breach or of the
<br />same breach on a future occasion.
<br />12. CHOICE OF LAW, JURISDICTION, VENUE, AND JURY TRI-
<br />ALS: This Contract will be governed by the applicable laws of the
<br />State of Indiana, without regard to Indiana’s principles of conflicts of
<br />law. All legal actions involving all disputes arising under this Contract
<br />will be brought exclusively in a court of the State of Indiana sitting in
<br />St. Joseph County, Indiana, or in the United States District Court for
<br />the Northern District of Indiana sitting in South Bend, Indiana. Buyer
<br />and Seller waive all of their rights to a trial by jury in any legal action
<br />related to this Contract.
<br />13. SEVERABILITY: If any provision of this contract is held unen-
<br />forceable by any court having jurisdiction, no other provisions will be
<br />affected, and the court will modify the unenforceable provision (con-
<br />sistent with the intent of the parties as evidenced in this Contract) to
<br />the minimum extent necessary so as to render it enforceable.
<br />14. BUYER INFORMATION: Buyer certifies that Seller may continue
<br />to rely on the Confirmation Email address on Page 1 as the current
<br />and proper email address for notices and communication to Buyer.
<br />Buyer will update Seller if there is a change in the Confirmation Email.
<br />15. COUNTERPARTS & SIGNATURES: This Contract, including any
<br />Confirmation and Exhibits, may be signed in counterparts which,
<br />when taken together, will comprise the entire Contract. Faxed, pho-
<br />tocopied, or scanned copies of this Contract which contain faxed,
<br />photocopied, or scanned images of the signers’ signatures may be
<br />used for all purposes under which an original agreement bearing orig-
<br />inal signatures could be used.
<br />16. ENTIRE CONTRACT: This Contract, collectively with all of the
<br />Confirmation and Exhibits, contains the entire agreement between
<br />Seller and Buyer regarding the Accounts under this Agreement, and
<br />it supersedes all prior and contemporaneous written and oral agree-
<br />ments and understandings between them with respect to those Ac-
<br />counts. This Contract cannot be modified in any way except by a
<br />writing signed by both Seller and Buyer.
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