EXHIBIT NO. 6.3
ESP SERVICE AGREEMENT PACIFIC GAS & ELECTRIC.
PACIFIC GAS AND ELECTRIC COMPANY
[LOGO] ENERGY SERVICE PROVIDER (ESP) SERVICE
AGREEMENT
This Energy Service Provider (ESP) Service Agreement (this "Agreement") is made
and entered into as of this 18 day of MAY, 2000, by and between" Friendly Energy
Corporation" ("ESP"), a corporation organized and existing under the laws of the
state of Nevada, and "Pacific Gas and Electric Company"("PG&E"), a corporation
organized and existing under the laws of the state of California. From time to
time, ESP and PG&E shall be individually referred to here in as a "Party" and
collectively as the "Parties."
SECTION 1: GENERAL DESCRIPTION OF AGREEMENT
1.1 This Agreement is a legally binding contract. The Parties
named in this Agreement are bound by the terms set forth
herein and otherwise incorporated herein by reference. This
Agreement shall govern the business relationship between the
Parties hereto by which ESP shall offer electrical energy
services, including, but not limited to, account maintenance
and billing services, electrical meter installation, meter
reading services and/or any other services that may be
approved by the California Public Utilities Commission
("CPUC") in Direct Access transactions with customers in
PG&E's service territory ("Direct Access Services"). Each
Party, by agreeing to undertake specific activities and
responsibilities for or on behalf of customers, acknowledges
that each Party shall relieve and discharge the other Party
of the responsibility for said activities and
responsibilities with respect to those customers. Except
where explicitly defined herein (including Attachment A
hereto) the definitions controlling this Agreement are
contained in PG&E's applicable rules or in the relevant
direct access tariff.
1.2 The form of this Agreement has been developed as part of the
CPUC regulatory process, was intended to conform to CPUC
directions, was filed and approved by the CPUC for use between
PG&E and ESPs and may not be waived, altered, amended or
modified, except as provided herein or in the relevant direct
access tariff, or as may other wise be authodzed by the CPUC.
SECTION 2: REPRESENTATIONS
2.1 Each Party represents that it is and shall remain in
compliance with all applicable laws and tariffs, including
applicable CPUC requirements.
2.2 Each person executing this Agreement for the respective
Parties expressly represents and warrants that he or she has
authority to bind the entity on whose behalf this Agreement is
executed.
2.3 Each Party represents that (a) it has the full power and
authority to execute and deliver this Agreement and to perform
its terms and conditions; (b) the execution, delivery and
performance of this Agreement have been duly authorized by all
necessary corporate or other action by such Party; and (c)
this agreement constitutes such Party's legal, valid and
binding obligation, enforceable against such Party in
accordance with its terms.
2.4 Each Party shall (a) exercise all reasonable care, diligence
and good faith in the performance of its duties pursuant to
this Agreement; and (b) carry out its duties in accordance
with applicable recognized professional standards in
accordance with the requirements of this Agreement.
SECTION 3: TERM OF SERVICE
The term of this Agreement shall commence on the date of
execution by both Parties hereto (the "Effective Date")
and shall terminate on the earlier of (a) the date ESP informs
PG&E that it is no longer operating as an ESP in PG&E's
service territory; (b) the earlier termination pursuant to
Section 4 hereof; or (c) the effective date of a new ESP
Service Agreement between the Parties hereto. Notwithstanding
the Effective Date of this Agreement, the ESP acknowledges
that it may only offer Direct Access Services to customers
effective January 1, 1998, or such other date as may be
directed by the CPUC for commencement of such services by
ESPs, and only after it has complied with all provisions of
this Agreement and PG&E's applicable tariffs.
SECTION 4: EVENTS OF DEFAULT AND REMEDY FOR DEFAULT
4.1 An Event of Default under this Agreement shall include either
Party's material breach of any provision of this Agreement,
including those incorporated by reference herein, and failure
to cure such breach within thirty (30) calendar days of
receipt of written notice thereof from the non-defaulting
Party; or such other period as may be provided by this
Agreement or PG&E's direct access tariff.
4.2 In the event of such an Event of Default, the non-defaulting
Party shall be entitled (a) to exercise any and all remedies
available under PG&E's direct access tariff; (b) to the extent
not inconsistent with PG&E's direct access tariff to exercise
any and all remedies provided for by law or in equity; and (c)
in the event of a material Event of Default, to terminate this
Agreement up on written notice to the other Party, which shall
be effective upon the receipt thereof.
4.3 Breach by any Party hereto of any provision of PG&E's direct
access tariff shall be governed by applicable provisions
contained therein and each Party will retain all rights
granted thereunder.
SECTION 5: BILLING, METERING AND PAYMENT
5.1 Billing options and metering services which are available to
ESP shall be as described in PG&E's direct access tariff, as
stated in PG&E's Electric Rule 22. Billing and metering
options applicable to aparticular customer shall be designated
in the Direct Access Service Request submitted by the ESP for
such customer.
5.2 PG&E will ▇▇▇▇ and the ESP agrees to pay PG&E for all services
and products provided by PG&E in accordance with the terms and
conditions setforth in PG&E's direct access tariff, as
stated in PG&E's Electric Rule 22 and PG&E's rate schedules.
Any services provided by the ESP to PG&E shall be by separate
agreement between the Parties and are not a subject of this
Agreement.
SECTION 6: LIMITATION OF LIABILITY
Each Party's liability to the other Party for any loss,
cost, claim, injury, liability, or expense, including
reasonable attorneys' fees, relating to or arising from
any act or omission in its performance of this Agreement,
shall be limited to the amount of direct damage actually
incurred, except as provided for in this Section. In no event
shall either Party be liable to the other Party for any
indirect, special, consequential, or punitive damages of
any kind whatsoever, whether in contract, tort or strict
liability, except in the event of an action covered by the
Indemnification provisions of Section 7 of this Agreement,
in which event this Section 6 shall not be applicable.
SECTION 7: INDEMNIFICATION
7.1 To the fullest extent permitted by law, and subject to the
limitations set forth in Section 6 of this Agreement, each
Party (the "Indemnifying Party") shall indemnify and hold
harmless the other Party, and its current and future direct
and indirect parent companies, affiliates and their
shareholders, officers, directors, employees, agents, servants
and assigns (collectively, the "Indemnified Party") and at the
Indemnified Party's option, the Indemnifying Party shall
defend the Indemnified Party from and against any and all
claims and/or liabilities for losses, expenses, damage to
property, injury to or death of any person, including, but not
imited to, the Indemnified Party's employees and its
affiliates' employees, sub contractors and subcontractors'
employees, or any other liability incurred by the
Indemnified Party, including reasonable expenses, legal and
otherwise, which shall include reasonable attorneys' fees,
caused wholly or in part by any negligent, grossly negligent
or willful act or omission by the Indemnifying Party, its
officers, directors, employees, agents or assigns arising
out of this Agreement, except to the extent caused wholly
or in part by any negligent, grossly negligent or willful act
or omission of the Indemnified Party.
7.2 If any claim covered by Section 7.1 is brought against the
Indemnified Party, then the Indemnifying Party shall be
entitled to participate in, and unless in the opinion of
counsel for the Indemnified Party a conflict of interest
between the Parties may exist with respect to such claim,
assume the defense of such claim, with counsel reasonably
acceptable to the Indemnified Party. If the Indemnifying
Party does not assume the defense of the Indemnified Party,
or if a conflict precludes the Indemnifying Party from
assuming the defense, then the Indemnifying Party shall
reimburse the Indemnified Party on amonthly basis for the
Indemnified Partys defense through separate counsel of the
Indemnified Party's choice. Even if the Indemnifying Party
assumes the defense of the Indemnified Party with acceptable
counsel, the Indemnified Party, at its sole option, may
participate inthe defense, at its own expense, with counsel
of its own choice without relieving the Indemnifying Party of
any of its obligations hereunder. In no event shall either
Party be liable to the other Party for any indirect, special,
consequential, or punitive damages of any kind whatsoever,
whether in contract, tort or strict liability.
7.3 The Indemnifying Party's obligation to indemnify under this
Section 7 shall survive termination of this Agreement, and
shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable
by or for the Indemnifying Party under any statutory scheme,
including, without limitation, under any Workers Compensation
Acts, Disability Benefit Acts or other Employee Benefit Acts.
SECTION 8: ASSIGNMENT AND DEREGULATION
8.1 Neither Party to this Agreement shall assign any of its
rights or obligations under this Agreement, except with
the prior written consent of the other Party, which
consent shall not be unreasonably with held or delayed. No
assignment of this Agreement shall relieve the assigning
Party of any of its obligations under this Agreement until
such obligations have been assumed by the assignee. When
duly assigned in accordance with the foregoing, this
Agreement shall be binding up on and shall inure to the
benefit of the assignee and the assignor shall be relieved
of its rights and obligations. Any assignment in violation
of this Section 8 shall be void.
8.2 Notwithstanding the provisions of this Section 8, either
Party may subcontract its duties under this Agreement to a
subcontractor provided thatthe subcontracting Partyshall
remain fully responsible as a principal and not as a
guarantor for performance of any subcontracted duties,
shall serve as the point of contact between its subcontract
or and the other Party, and shall provide the other Party
with thirty (30) calendar days' prior written notice of any
such subcontracting, which notice shall include such
information about the subcontractor as the other Party
shall reasonably require, and provided further that each
Party may subcontract its obligation to provide Metering or
Meter Reading Services under this Agreement only to
subcontractors who have complied with all certification or
registration requirements described in applicable law, CPUC
rules and PG&E's
direct access tariff. If either Party subcontracts any of
its duties hereunder, it shall cause it shall cause its
subcontractors to perform in a manner which is in conformity
with that Party's obligations under this Agreement.
SECTION 9: INDEPENDENT CONTRACTORS
Each Party shall perform its obligations under this Agreement
(including any obligations performed by a Party's designees as
permitted under Section 8 of this Agreement) as an independent
contractor.
SECTION 10: ENTIRE AGREEMENT
This Agreement consists of, in its entirety, this Energy
Service Provider Service Agreement and all attachments hereto,
all Direct Access Service Requests submitted pursuant to this
Agreement and PG&E's direct access tariff. This Agreement
supersedes all other agreements or understandings, written or
oral, between the Parties related to the subject matter
hereof. This Agreement may be modified from time to time only
by an instrument in writing, signed by both Parties.
SECTION 11: NONDISCLOSURE
11.1 Neither Party may disclose any Confidential Information
obtained pursuant to this Agreement to any third party,
including affiliates of such Party, without the express prior
written consent of the other Party. As used herein, the term
"Confidential Information" shall include, but not be limited
to, all business, financial, and commercial information
pertaining to the Parties, customers of either or both
Parties, suppliers for either Party, personnel of either
Party, any trade secrets, and other information of a
similar nature, whether written or in intangible form that is
marked proprietary or confidential with the appropriate
owner's name. Confidential Information shall not include
information known to either Party prior to obtaining the same
from the other Party, information in the public domain,or
information obtained by a Party from a third party who did
not, directly or indirectly, receive the same from the other
Party to this Agreement or from a party who was under an
obligation of confidentiality to the other Party to this
Agreement or information developed by either Party
independent of any ConfidentiaI Information. The receiving
Party shall use the higher of the standard of care that the
receiving Party uses to preserve its own confidential
information or a reasonable standard of care to prevent
unauthorized use or disclosure of such Confidential
Information. Each receiving Party shall, upon termination of
this Agreement or at any time upon the request of the
disclosing Party, promptly return or destroy all
Confidential Information of the disclosing Party then in its
possession.
11.2 Notwithstanding the preceding, Confidential Information may be
disclosed to any governmental, judicial or regulatory
authority requiring such Confidential Information pursuant to
any applicable law, regulation, ruling, or order, provided
that: (a) such Confidential Information is submitted under any
applicable provision, if any, for confidential treatment by
such governmental, judicial or regulatory authority; and (b)
prior to such disclosure, the other Party is given prompt
notice of the disclosure requirement so that it may take
whatever action it deems appropriate, including intervention
in any proceeding and the seeking of any injunction to
prohibit such disclosure.
SECTION 12: ENFORCEABILITY
If any provision of this Agreement or the application thereof,
is to any extent held invalid or unenforceable, the remainder
of this Agreement and the application thereof, other than
those provisions which have been held invalid or
unenforceable, shall not be affected and shall continue in
full force and effect and shall been forceable to the
fullest extent permitted by law or in equity.
SECTION 13: NOTICES
13.1 Except as otherwise provided in this Agreement, any notices
under this Agreement shall be in writing and shall be
effective upon delivery if delivered by (a) hand; (b) U.S.
Mail, first class postage pre-paid, or (c) facsimile, with
confirmation of receipt to the Parties as follows:
IF THE NOTICE IS TO ESP:
Contact Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Business Address: Suite 250, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
IF THE NOTICE IS TO PG&E :
Contact Name: Director of ESP Relations
Business Address:
Account Services Department
Mail Code H28B
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13.2 Each Party shall be entitled to specify as its proper address
any other address in the United States upon written notice to
the other Party.
13.3 Each Party shall designate on Attachment A the person(s) to be
contacted with respect to specific operational matters
relating to Direct Access service. Each Party shall be
entitled to specify any change to such person(s) upon written
notice to the other Party.
SECTION 14: TIME OF ESSENCE
The Parties expressly agree that time is of the essence for
all portions of this Agreement.
SECTION 15: DISPUTE RESOLUTION
15.1 The form of this Agreement has been filed with and approved by
the CPUC as part of PG&E's applicable tariffs. Except as
provided in Section 15.2 and 15.3, any d is pute a dsing
between the Parties relating to interpretation of the
provisions of this Agreement or to the performance of PG&E's
obligations hereunder (including the performance of Billing
Services, Metering Services and MDMA Services by PG&E) shall
be reduced to writing and referred to the Parties'
representatives identified on Attachment A for resolution.
Should such a dispute arise, the parties shall be required to
meet and confer in an effort to resolve their dispute. Pending
resolution, the Parties shall proceed diligently with the
performance of their respective obligations under this
Agreement, except if this Agreement has been terminated under
Section 4.2. If the Parties fail to reach an agreement within
a reasonable period of time, the matter shall, upon demand of
either Party, be submitted to resolution before the CPUC in
accordance with the CPUC's rules, regulations and procedures
applicable to resolution of such disputes.
15.2 Any dispute arising between the Parties relating to
interpretation of the provisions of this Agreement or to the
performance of the ESP's obligations hereunder (including the
performance of Billing Services, Meteding Services and MIDMA
Services by the ESP) shall be reduced to editing and referred
to the Parties' representatives identified on Attachment A for
resolution. Should such a dispute arise, the parties shall be
required to meet and confer in an effort to resolve their
dispute. Pending resolution, the Parties shall proceed
diligently with the performance of their respective
obligations under this Agreement, except if this Agreement has
been terminated under Section 4.2. If the Parties fail to
reach an agreement within a reasonable period of time, the
parties may mutually agree to pursue mediation or arbitration
to resolve such issues.
15.3 Notwithstanding the provisions of Paragraph 15.1 and 15.2
above: (a) all disputes between the Parties relating to the
payment by the ESP of any PG&E fees or
charges shall be subject to the provisions of PG&E's
applicable tariffs governing disputes over customer bills;
(b) all disputes between the Parties regarding Competition
Transition Charges payable by direct access customers or
the ESP on behalf of such customers shall be subject to the
provisions of PG&E's applicable tariffs; and (c) PG&E may
pursue available remedies for unauthorized electrical use
by the ESP in a court of competent judsdiction.
15.4 If the dispute involves a request for damages, parties are
notified that the Commission has no authority to award
damages. To resolve such issues, the parties may mutually
agree to pursue mediation or arbitration to resolve such
issues, or if no agreement is reached, to pursue other legal
remedies that are available to the parties.
SECTION 16: APPLICABLE LAW AND VENUE
This Agreement shall be interpreted, governed by and
constructed in accordance with the laws of the State of
California, and shall exclude any choice of law rules that
direct the application of the laws of another jurisdiction,
irrespective of the place of execution or of the order in
which the signatures of the parties are affixed or of the
place or places of performance. Except for matters and
disputes with respect to which the CPUC is the sole proper
venue for dispute resolution pursuant to applicable law
or this Agreement, the federal and state courts located in
San Francisco County, California shall constitute the sole
proper venue for resolution of any matter or dispute
hereunder, and the Parties submit to the exclusive
jurisdiction of such courts with respect to such matters
and disputes.
SECTION 17: FORCE MAJEURE
Neither Party shall be liable for any delay or failure in
the performance of any part of this Agreement (other than
obligations to pay money) due to any event of force majeure
or other cause beyond its reasonable control, including but
not limited to, unusually severe weather, flood, fire,
lightning, epidemic, quarant inerestriction, war, sabotage,
act of a public enemy, earthquake, insurrection, dot, civil
disturbance, strike, work stoppage caused by jurisdictional
and similar disputes, restraint by court order or public
authority, or action omon-action by or inability to obtain
authorization or approval from any governmental authority,
or any combination of these causes, which by the exercise
of due diligence and foresight such Party could not
reasonably have been expected to avoid and which by the
exercise of due diligence is unable to overcome. It is
agreed that upon the Party so affected giving written
notice and reasonably full particulars of such force
majeure to the other Party within a reasonable time after
the cause relied on, then the obligations of the Party, so
far as they are affected by the event of force majeure,
shall be suspended during the continuation of such
inability and circumstance and shall, so far as possible,
be remedied with all reasonable dispatch. In the event of
force majeure, as described herein, both Parties shall take
all reasonable steps to comply with this Agreement
and PG&E's applicable tariffs despite occurrence of a force
majeure event.
SECTION 18: UNAUTHORIZED USE OF ENERGY (ENERGY THEFT)
18.1 The ESP represents and warrants that for each of its
Customers, and at all times during which it provides Direct
Access services as an Energy Service Provider, the ESP shall
completely, accurately, and in a timely manner account
for each of its Customers loads with a duly authorized
Scheduling Coordinator. Load data not accounted for in this
manner may provide grounds for termination of this Agreement.
For verification purposes only, PG&E shall have complete
access to the identity of the Scheduling Coordinator and the
load data provided to it by the ESP. Such information is to
remain confidential, and shall not be disclosed to any
unauthorized person.
18.2 PG&E shall notify the ESP immediately and the ESP shall notify
PG&E immediately of any suspected unauthorized energy use. The
Parties agree to preserve any evidence of unauthorized
energy use. Once unauthorized energy use is suspected, PG&E,
in its sole discretion, may take any or all of the actions
permitted under PG&E's applicable tariffs.
SECTION 19: NOT A JOINT VENTURE
Unless specifically stated in this Agreement to be
otherwise, the duties, obligations, and liabilities ofthe
Parties are intended to be several and not joint or
collective. Nothing contained in this Agreement shall ever
be construed to create an association, trust, partnership
orjoint venture or to impose a trust or partnership duty,
obligation, or liability on or with regard to either Party.
Each Party shall be liable individually and severally for
its own obligations under this Agreement.
SECTION 20: CONFLICTS BETWEEN THIS AGREEMENT AND PG&E'S DIRECT ACCESS
TARIFF
Should a conflict exist or develop between the provisions of
this Agreement and PG&E's direct access tariff, as approved by
the CPUC, the provisions of PG&E's direct access tariff shall
prevail.
SECTION 21: AMENDMENTS OR MODIFICATIONS
21.1 Except as provided in Section 21.2, no amendment or
modification shall be made to this Agreement, in whole or in
part, except by an instrument in writing executed by
authorized representatives of the Parties, and no amendment or
modification shall be made by course of performance, course of
dealing or usage of trade.
21.2 This Agreement may be subject to such changes or modifications
as the CPUC may from time to time direct or necessitate in the
exercise of its jurisdiction, and the Parties may amend the
Agreement to conform to changes directed or necessitated by
the CPUC. In the event the Parties are unable to agree on the
required changes or modifications to this Agreement, their
dispute shall be resolved in accordance with the provisions of
Section 15 hereof or, in the alternative, ESP may elect to
terminate this Agreement upon written notice to PG&E, which
shall be effective upon the receipt thereof. PG&E retains the
right to unilaterally file with the CPUC, pursuant to the
CPUC's rule sand regulations, an application for a change in
PG&E's rates, charges, classification, serviceor rules, or any
agreement relating thereto.
SECTION 22: BILLING OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which billing options (as described in PG&E's direct
access tariff ESP intends to provide its Customers under this
Agreement.
X Consolidated Billing by PG&E.
-------
Consolidated Billinq by the ESP
. -------
Separate PG&E and ESP Bills.
-------
ESP may change these elections from time to time in compliance
with the relevant direct access tariff upon prior written
notice to PG&E. The Direct Access Service Request (DASR)
for each Direct Access customer will specify which billing
option will apply to that customer. If ESP specifies in any
DASR any billing option that has not been checked above, the
DASR will be rejected.
SECTION 23: METER OPTIONS OFFERED TO END-USE CUSTOMERS BY ESP
Check which meter options (as described in PG&E's direct
access tariff) ESP will offer for some or all of its Customers
served under this Agreement.
ESP will provide Hourly Meters.
-----
ESP will offer Hourly Meter Installation Services.
-----
ESP will offer Hourly Meter Reading Services.
-----
ESP may change these elections from time to time in
compliance with PG&E's direct access tariff upon prior written
notice to PG&E. The Direct Access Service Request (DASR) for
each Direct Access customer will specify which metering option
will apply to that Customer. If ESP specifies in any Direct
Access Service Request any metering option that has not been
checked above, The DASR will be rejected.
SECTION 24: AUDITS
24.1 PG&E and the ESP shall each retain such specific records as
may be required to support the accuracy of meter data provided
in their respective consolidated ▇▇▇▇▇▇▇▇. When either Party
reasonably believes that errors related to metering or
billing activity may have occurred, a Party may request the
production of such documents as may be required to verify the
accuracy of such metering and consolidated billing. Such
documents shall be provided within ten (10) business days of
such request. In the event the requesting Party, upon review
of such documents, continues to believe that the other Party's
duty to accurately meter and provide consolidated billing for
usage has been breached, the requesting Party may direct that
an audit be conducted. PG&E and the ESP shall designate their
own employee representative or their contracted representative
to audit the other party's records.
24.2 Any such audit shall be undertaken by PG&E, the ESP, or their
contracted representative at reasonable times without
interference with the audited Party's business operations, and
in compliance with the audited Party's security procedures.
PG&E and the ESP agree to cooperate fully with any such audit
24.3 Specific records to support the accuracy of meter data
provided in the consolidated ▇▇▇▇▇▇▇▇ may require examination
of billing and metering support documentation
maintained by subcontractors. PG&E and the ESP shall include a
similar clause in their agreements with their subcontractors
reserving the right to designate their own employee
representative, or their contracted representative to audit
records related to consolidated billing to Direct Access
Customers.
24.4 The auditing Party will notify the audited Party in writing of
any exception taken as a result of an audit. The audited Party
shall refund the amount of any undisputed exception to the
auditing Party within ten (10) days. If the audited Party fails
to make such payment, the audited Party agrees to pay
interest, accruing monthly, at a rate equal to the prime rate
plus two percent (2%) of Bank of America NT&SA, San Francisco,
or any successor institution, in effect from time to time, but
not to exceed the maximum contract rate permitted by the
applicable usury laws of the State of California. Interest will
be computed from the date of written notification of
exceptions to the date the audited Party reimburses the
auditing Party for any exception. The cost of such audits
shall be paid by the auditing Party; provided, however, that in
the event an audit verifies over charges of five percent (5%)
or more, then the audited Party shall
reimburse the auditing Party for the cost of the audit.
24.5 This right to audit shall extend for a period of three
(3) years following the date of final payment under this
Agreement. Each party and each subcontractor shall retain all
necessary records and documentation for the entire length of
this audit period.
SECTION 25: MISCELLANEOUS
25.1 Unless otherwise stated in this Agreement: (a) any reference
in this Agreement to a section, subsection, attachment or
similar term refers to the provisions of this Agreement; (b) a
reference to a section includes that section and all its
subsections; and (c) the words "include," "includes," and
"including" when used in this Agreement shall be deemed in
each case to be followed by the words Without Limitation."The
Parties agree that the normal rule of construction to the
effect that any ambiguities are to be resolved against the
drafting Party shall not be employed in the interpretation of
this Agreement
25.2 The provisions of this Agreement are for the benefit of the
Parties and not for any other person or third party
beneficiary. The provisions of this Agreement shall not
impart rights enforceable by any person, firm or organization
other than a Party or a successor or assignee of a Party to
this Agreement.
25.3 The descriptive headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall in no way define, modify or restrict any of the
tenns and provisions thereof.
25.4 Any waiver at any time by either Party of its rights with
respect to a default under this Agreement, or with respect to
any other matter arising in connection with this Agreement,
shall not be deemed a waiver with respect to any other or
subsequent default or matter and no waiver shall be considered
effective unless in writing.
25.5 Each Party shall be responsible for paying its own attorneys'
fees and other costs associated with this Agreement,
except as provided in Sections 6 and 7 hereof. If a dispute
exists hereunder, the prevailing Party, as determined by the
CPUC, or as may otherwise be determined by the dispute
resolution procedure contained in Section 15 hereof, if used,
or by a court of law, shall be entitled to reasonable
attorneys' fees and costs.
25.6 To the extent that the CPUC has a right under then-current law
to audit either Party's compliance with this Agreement or
other legal or regulatory requirements pertaining to Direct
Access transactions, that Party shall cooperate with such
audits. Nothing in this Section shall be construed as an
admission by either Party with respect to the right of the
CPUC to conduct such audits or the scope thereof.
25.7 Except as otherwise provided in this Agreement, all rights of
termination, cancellation or other remedies in this Agreement
are cumulative. Use of any remedy shall not preclude any other
remedy in this Agreement.
The Parties have executed this Agreement on the dates indicated below,
to be effective upon the later date.
ON BEHALF OF ESP ON BEHALF OF PG&E
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ Del ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: Del ▇▇▇▇▇
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Title: Chief Operating Officer Title: Director
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Date: April 11, 2000 Date: 5/18/00
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