Mutual Representations and Warranties. Each party represents and warrants to the other party as of the date of this Agreement, that (i) it has, and at all times during the term of this Agreement will have, all necessary power and authority to execute, deliver, and perform its obligations under this Agreement; (ii) the execution, delivery, and performance of this Agreement has been duly authorized by all necessary action and does not violate any of the terms or conditions of its governing documents, or any contract to which it is a party, or any law or other legal or regulatory determination applicable to it; and (iii) there is no pending or (to its knowledge) threatened litigation, arbitration, or administrative proceeding that materially adversely affects its ability to perform its obligations under this Agreement.
Representations and Warranties of Green Places. Green Places represents and warrants to Customer that, with respect to the VER’s delivered to Customer hereunder: (i) it has not sold, transferred, or otherwise disposed of any VER’s held for the benefit of Customer hereunder except as provided herein; (ii) each VER held for the benefit of Customer hereunder meets the specifications set forth in this Agreement; (v) Green Places has good and marketable title to the VER’s held for Customer hereunder; and (iii) all right, title and interest in and to the VER’s held for Customer hereunder are free and clear of any liens, taxes, claims, security interests, or other encumbrances.
Disclaimer. GREEN PLACES EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
Event of Default. For purposes of this Agreement, a party shall be in default (each of the following, an “Event of Default”): (i) if that party fails to make, when due, any payment required pursuant to this Agreement if such failure is not remedied within five (5) business days of written notice from the other party; (ii) if that party materially breaches any or all of its covenants or obligations under this Agreement and such breach is not cured within five (5) business days of written notice of such breach from the other party; (iii) if any representation or warranty made by a party pursuant to this Agreement proves to have been misleading or false in any material respect when made; (iv) if a party makes an assignment or any general arrangement for the benefit of its creditors; files a petition or otherwise commences, authorizes or acquiesces in the commencement of a case, proceeding or cause under Title 11 of the United States Code or any insolvency or similar law for the protection of creditors; has such a petition filed against it; or otherwise becomes bankrupt or insolvent (however evidenced); (v) if a liquidator, receiver, trustee, conservator or similar official is appointed with respect to a party or any substantial proportion of its property or assets; (vi) if that party is generally unable, or admits in writing of its general inability, to pay its debts as they fall due; or (vii) if that party repudiates any obligation under this Agreement.
Remedies Upon Default. If an Event of Default occurs on the part of either party and is continuing, the non-defaulting party may exercise such remedies available at law or in equity.
Failure to Perform. Notwithstanding anything in this Agreement to the contrary, the remedies set forth in this section are the exclusive monetary remedies of the performing party for the other party’s failure to (i) perform its obligations hereunder, or (ii) deliver the Green Places VER Certificate specified herein, as applicable.
LIMITATION OF LIABILITY. THE EXPRESS REMEDIES AND MEASURES OF DAMAGES PROVIDED HEREIN SATISFY THE ESSENTIAL PURPOSES HEREOF. FOR BREACH OR DEFAULT ARISING FROM ANY PROVISION FOR WHICH AN EXPRESS REMEDY IS PROVIDED HEREIN, SUCH REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, LIABILITY SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY. SUCH DIRECT, ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED. EXCEPT AS MAY BE INCLUDED IN AN EXPRESS REMEDY PROVIDED FOR HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS (EXCEPT TO THE EXTENT THAT THE PAYMENTS REQUIRED TO BE MADE PURSUANT TO THIS AGREEMENT ARE DEEMED TO BE SUCH DAMAGES), DAMAGES TO NAME OR REPUTATION, OR BUSINESS INTERRUPTION DAMAGES, WHETHER BASED ON STATUTE, CONTRACT, TORT OR OTHERWISE, WITHOUT REGARD TO CAUSE OR THE NEGLIGENCE OF ANY PARTY, WHETHER SOLE, JOINT, ACTIVE OR PASSIVE, AND EACH PARTY HEREBY RELEASES THE OTHER PARTY FROM ANY SUCH LIABILITY, EVEN IF DURING THE TERM HEREOF IT ADVISES THE OTHER OF THE POSSIBILITY OF SUCH DAMAGES.
Audit and Inspection. Green Places shall maintain adequate records to assist Customer in meeting any reporting requirements associated with the VER’s. Green Places shall provide such records upon reasonable notice from Customer. If any such examination reveals any inaccuracy in any statement, the parties shall make the necessary adjustments promptly.
Regulatory Event. If, due to the adoption of, or change in, any applicable law, or in the interpretation of any such law by final order of any judicial or government authority with competent jurisdiction, (either, a “Regulatory Event”) it becomes unlawful for a party to perform any material obligation under this Agreement, (i) the parties will use reasonable efforts to reform this transaction in order to give effect to the original intention of the parties or allow Customer to claim the benefit of the environmental attributes of the VER’s pursuant to another program if possible; or (ii) at either party’s sole discretion, either party may terminate this Agreement in which case Green Places will immediately provide a full refund to Customer of amounts paid hereunder for any VER’s that Green Places has not purchased for the benefit of Customer, and neither party shall have any further liabilities hereunder.
Notices. All notices, demands, and other communications hereunder shall be effective only if given in writing and shall be deemed given (i) when delivered in person; (ii) when delivered by private courier (with confirmation of delivery); (iii) when transmitted by e-mail (with confirmation of transmission by the intended recipient); or (iv) five (5) business days after being deposited in the United States mail, first-class, registered or certified, return receipt requested, with postage paid. For purposes hereof, all notices, demands and other communications shall be sent to the contacts and addresses above (or to such other address furnished in writing by one party to the other party.
Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Neither party may transfer or assign this Agreement, in whole or in part, without the other party’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed; provided that each party agrees to grant such consent in the context of a merger or sale of all or substantially all of the other party’s assets or the assets of a business unit of the other party to which this Agreement relates; and provided further that such resulting successor or acquiring entity or person agrees in writing to assume all of the assigning party’s rights and obligations hereunder. Notwithstanding the foregoing, each party may, without the consent of the other party, assign its rights and obligations under this Agreement to an affiliate of the assigning party so long as such affiliate entity agrees to assume all rights and obligations of the assigning party hereunder and the assigning party provides written notice of such assignment or transfer to the other party. Upon any transfer or assignment permitted by this Agreement, the assigning party shall be released from its obligations hereunder to the extent such obligations are assumed by the assignee.
Amendment. This Agreement may be amended at any time, but only by a written agreement signed by both parties.
No Waiver. No delay or omission by a party in the exercise of any right under this Agreement shall be taken, construed, or considered as a waiver or relinquishment thereof. If any of the terms and conditions herein are breached and thereafter waived in writing by a party, such waiver is limited to the particular breach so waived and is not deemed to waive any other breach hereunder.
Severability. If any provision or portion of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible, and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
Complete Agreement. This Agreement represents the parties’ final and mutual understanding concerning its subject matter. It replaces and supersedes any prior agreements or understandings, whether written or oral.
No Relationship. Nothing in this Agreement shall be construed to constitute a joint venture, fiduciary relationship, partnership or other joint undertaking between the parties.
Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA, EXCLUDING ANY CHOICE OF LAW OR CONFLICTS OF LAW RULES OR PRINCIPLES THAT WOULD PERMIT OR REQUIRE THE APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION.
Dispute Resolution. Any dispute between the parties arising under or pertaining to this Agreement shall be referred to representatives of the parties for informal dispute resolution discussions as soon as practicable. In the event that the designated representatives do not reach a mutually acceptable resolution of the dispute within thirty (30) days of such referral, the parties may agree to submit such dispute to mediation or other dispute resolution process as may be agreed upon by the parties. If the dispute is not resolved within ninety (90) days from the date of such submission for mediation or other dispute resolution process, either party may bring an appropriate action at law or in equity solely in the state and federal courts located in Raleigh, North Carolina, and such courts have exclusive jurisdiction over any unresolved disputes. Each party waives any objection which it may have at any time to the laying of venue of any such proceedings brought in any such court, waives any claim that such proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement to the contrary shall, or is intended to, prevent either party from bringing an action in equity to seek injunctive relief, if necessary to avoid irreparable harm. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY LITIGATION ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
Further Assurances. Each party shall provide the other party any reasonably requested information or documentation required to effect a transfer of the benefits represented by the VER’s held by Green Places for the benefit of Customer pursuant to the terms of this Agreement and will otherwise comply with any and all applicable procedures and requirements of applicable law relating to the transfer.
Good for business.
Good for the planet.
Accessible to all.