Fuel Purchase Agreement (Page 14 of 24) in pdf

FLORIDA POWER & LIGHT COMPANY

FUEL OIL PURCHASE CONTRACT

GENERAL TERMS AND CONDITIONS

MISCELLANEOUS

Construction

15.1

Appendix and Section headings appearing in this Contract are inserted for purposes of convenience and reference only and shall in

no way be construed to be interpretations of the text.

Complete Agreement

15.2

This Contract constitutes the entire final, complete and exclusive statement of the terms of agreement between the Parties. The

Parties agree that parol or extrinsic evidence may not be used to alter or contradict the express terms of this Contract and that

recourse may not be had to alleged prior dealings, usage of trade, course of dealing, or course of performance to explain or

supplement the express terms of this Contract. This Contract shall not be amended or modified, and no waiver of any provision

hereof shall be effective, unless set forth in writing and executed by the Parties.

Assignment

15.3

Neither Party shall assign this Contract or the duties to be performed hereunder without the prior written consent of the other, which

consent shall not be unreasonably withheld or delayed. Notwithstanding such agreement by of the consenting Party, no assignment

of this Contract shall release the assigning Party from any obligations hereunder until such obligations have been fully assumed by

the assignee and the consenting Party has released the assigning Party from its obligations under this Contract in writing. Such

release shall not be unreasonably withheld or delayed by the consenting Party.

Confidentiality

15.4

The Parties agree to hold this Contract, including any Transaction Confirmations or any related confidential material, in trust and

confidence and shall not disclose the same to others except contractors, agents, representatives, consultants, employees and

affiliated companies of the disclosing Party, except as otherwise provided in this Contract. Notwithstanding the above, the Parties

may disclose this Contract and any Transaction Confirmations or any related confidential material to governmental authorities

having appropriate jurisdiction when required to do so.

Contractor Status

15.5

SELLER agrees to furnish Product under this Contract as an independent contractor and not a subcontractor, agent or employee of

FPL Entities. FPL Entities will not retain any control or direction over SELLER, its employees, or Subcontractors, or over the means,

manner, or methods of performance of SELLER’s obligations under this Contract.

Nonwaiver

15.6

Except as may be specifically provided for in this Contract, failure of either Party to insist upon strict performance of any provisions

hereof, or failure or delay in exercising any rights or remedies provided herein or by law, or the acceptance of or payment for the

Product or any combination thereof, shall not release the other Party from any obligations under this Contract and shall not be

deemed a waiver of the right to insist upon strict enforcement hereof, or of any rights or remedies made available under this

Contract or by law, nor shall any purported oral modification or rescission of this Contract by an employee or agent of the Parties

operate as a waiver of any of the provisions hereof.

Severability of Provisions

15.7

If any provision of this Contract is determined by a court having jurisdiction to be illegal, unenforceable or in conflict with any

applicable law, such determination shall have no effect on the validity and enforceability of the remaining provisions of the Contract.

The Parties expressly agree that no provision of this Contract should be construed against or interpreted to the disadvantage of any

Party by any governmental authority due to such Party having structured or dictated such provision.

Survival

15.8

The obligations, warranties, and agreements of the Parties under this Contract shall inure to the benefit of the Parties and their

successors and permitted assigns and shall exist for the full term of the Contract. The provisions of this Contract that provide for

indemnification and limitation of or protection against Liabilities shall apply to the fullest extent of the law and shall survive the

termination of this Contract.

Waiver of Claims

15.9

All invoices, billings, and the payments made or due hereunder shall be conclusively presumed final and accurate and all associated

claims for under- or overpayments shall be deemed waived unless such invoices, billings, and payments are objected to in writing,

with adequate explanation and/or documentation, within two years after the Delivery Month.

GLOSSARY

Affiliate: With respect to either Party to this Contract, any other entity that directly or indirectly, through one or more

16.1

intermediaries, controls or is controlled by, or is under common control with, such Party. For this purpose, “control”

means the direct or indirect ownership of 50% or more of the outstanding capital stock or other equity interests having

ordinary voting power.

API: American Petroleum Institute

16.2

ASTM:

American Society for Testing and Materials

16.3

Barrel -or- BBL: A volume equal to forty-two (42) U.S. gallons. For purposes of this Contract, when measured at the

16.4

delivery temperature, the volume may be referred to as gross Barrels, whereas, upon correction for temperature

variations to sixty degrees Fahrenheit (60°F) according to ASTM D-1250, Table 6B, the volume may be referred to as

net Barrels.

FPL FOG GTC R20100101.doc

Fuel Purchase Agreement Page 14

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