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Standard 
Terms and Conditions
Application of Terms and Conditions
3 Phases Renewables is California corporation with its principle place of business located at 1228 E. Grand Avenue, El Segundo, CA 90245 (hereinafter referred to “3 Phases” or the “Buyer”).
“Client” is the entity or individual described in the Service Agreement as the “client” or in the Purchase Agreement as the “Seller”.
3 Phases and Client shall from time to time also individually be referred to as “party” and collectively be referred to as “parties”.
Definitions and Interpretation
In these Terms and Conditions, unless the context otherwise specified, the following expressions have the following meanings:
“CARB or ARB” means California Air Resources Board
“LCFS” means Low Carbon Fuel Standards
“Equipment” means Electric Vehicle Supply Equipment (EVSE) or any other equipment capable of generating LCFS Credits.
“LCFS Regulations” means the regulations, orders, decrees and standards issued by a governmental authority implementing or otherwise applicable to the Low Carbon Fuel Standard as set forth in 17 CCR § 95480 et seq. and each successor regulation, as may be subsequently amended, modified, restated from time to time.
“LCFS Credit(s)” means a Credit as defined in the LCFS Regulations.
“LCFS Account” means the account of a party showing the LCFS Credits and Deficits generated by the party or transferred, purchased or acquired by the party, as established with the ARB or another governmental authority pursuant to the LCFS Regulations.
“LRT-CBTS” means “LCFS Reporting Tool and Credit Bank and Transfer System.
“Credit Purchaser” means a Party registered in ARB’s LRT-CBTS who is willing and able to purchase LCFS Credits at a fair market value including but not limited to obligated parties as defined in the LCFS Regulations.
“Party or the “Parties” refer to the party or parties to these Terms and Conditions.
Representations and Warranties
Each party represents and warrants to the other that:
It is validly existing and in good standing in the jurisdiction of its formation;
The execution, delivery, and performance of this Agreement and each Confirmation Letter are within its power, have been duly authorized by all necessary action and do not violate any of the terms and conditions in its governing documents or any agreements to which it is a party or any applicable law;
It has not filed, does not plan to file, nor has it had filed against it, any bankruptcy proceeding;
This Agreement constitutes its legally valid and binding obligation enforceable against it in accordance with its terms (subject to any equitable defenses);
It is not a party or subject to any agreement that may restrict or interfere with the delivery or receipt of the Electricity under this Agreement;
It shall be solely responsible for retaining adequate advisors and counsel to advise it with respect to the obligations assumed hereunder regardless of any information provided by the other party;
It is a “forward contract merchant” within the meaning of such term as used in the U.S. Bankruptcy Code and each party is acting in its capacity as a forward contract merchant in entering into this Agreement;
It has knowledge and experience in business matters sufficient to enable it to evaluate the risks associated with this Agreement and this Agreement is entered into by each party at its sole election and in the exercise of its independent judgment without duress, and it is not relying on any representations of the other party other than those expressly set forth herein.
Client represents to 3 Phases that:
Client owns or controls Client’s Credit Generating Facilities or has control over the sale and Initiation of transfer of the LCFS Credits therefor;
All of the information furnished by Client concerning Client’s Facilities is, to the best of Client’s information and belief, true and accurate;
Client conveys good title to all LCFS Credits hereunder, free and clear of any liens, security interests, and encumbrances or any interest in or to them by any third party;
Client has complied and will continue to comply for the duration of this Agreement, with a LCFS Regulations, including but not limited to the requirements set forth in Section 95483(e) of the LCFS Regulations, including those related to public education, rate setting, and use of credit proceeds when applicable;
Client has been and is solely responsible for its compliance with the LCFS Regulations and has notified 3 Phases of any non-compliance and shall continue to do so for the duration of this Agreement;
Client has not sold, transferred or encumbered (nor become legally obligated to do the same) any rights, title, or interest in the LCFS Credits to any person other than 3 Phases; and
Neither the Client, nor any of its associated or parent organizations or affiliates or its Clients or the party that owns the Client Credit Generating Facilities, has claimed directly or indirectly, including on any voluntary or mandatory basis, any of the LCFS Credits for any benefit whatsoever except as related to the transfer of such credits to 3 Phases.
In the event of LCFS Credit Purchases and/or Transfers:
Each LCFS Credit transferred to Buyer hereunder is valid as contemplated by the LCFS Regulations and is, indefeasibly a “Credit” as defined by the LCFS Regulations.
Each LCFS Credit was deposited into Seller’s LCFS Account, or otherwise transferred and recorded by the Executive Officer in Seller’s LCFS Account, prior to Initiation hereunder and Seller has good title to each LCFS Credit prior to Initiation hereunder.
the Quantity of the LCFS Credits Initiated does not exceed the number of total LCFS Credits in the Seller’s LCFS Account as determined in accordance with §95487(c)(1) of the LCFS Regulations.
Upon Transfer and recordation of the LCFS Credits in Buyer’s LCFS Account, the LCFS Credits shall be available for Buyer’s use for retirement, transfer to a third party or otherwise
Default and Termination.
If a Default with respect to a party shall have occurred and be continuing for at least ten (10) days after the defaulting party has received written notice (“Default Notice”) of such Default from the non-defaulting party, the non-defaulting party shall have the right to suspend its obligations and/or designate a date upon which all outstanding obligations will liquidate and terminate and all amounts owing will accelerate and be netted into a single amount as of such date.
The non-defaulting party shall calculate in a commercially reasonable manner a settlement amount for such termination as of the early termination date of the Default Notice. For purposes of calculating such a settlement amount for any such termination for which the Contract Quantity is not a fixed quantity, the Contract Quantity shall be the estimated baseline quantity set forth in this Agreement.
In the event that 3 Phases is in Default this Agreement, it is agreed that the damage of Client shall include but not be limited to first, whenever possible, the return of the LCFS Credits back to the Client by 3 Phases, and if such option is not available, the reasonable cost of reselling the LCFS Credits. Reasonable cost of reselling shall be defined as the difference between the sale price under this Agreement and the market price if the market price is lower than the sale price and zero if the market price is higher than sale price.
“Default” means, with respect to a party (the defaulting party), the occurrence of any of the following:
the failure to make, when due, any payment required pursuant to this Agreement and such failure to make payment is not remedied within fifteen (15) days after written notice;
any material representation or warranty set forth in this Agreement is false or misleading when made or repeated;
the failure to perform any material covenant or obligation set forth in this Agreement (except to the extent constituting a separate Default) if such failure is not remedied within thirty (30) days after written notice is received by the defaulting party;
such party (or such party’s credit support provider) files a petition or otherwise commences, authorizes or acquiesces to the commencement of a proceeding or cause of action with respect to it under any bankruptcy proceeding or similar laws for the protection of creditors, or has such a petition filed against it;
such party makes an assignment or any general arrangement for the benefit of creditors;
such party otherwise becomes bankrupt or insolvent (however evidenced), or otherwise unable to pay its debts as they fall due; or
termination of a transaction prior to its end date unless otherwise agreed to in this Agreement.
Disclaimer and Limitation of Liability.
3 Phases’ liability for the breach of terms of this Agreement shall be no greater than Client’s “direct damages.” “Direct damages” shall equal the difference between the price received by the Client from 3 Phases and the monthly average LCFS Credit price per credit (as reported by ARB), multiplied by the number of LCFS Credits transferred to 3 Phases LRT-CBTS during the two calendar quarters prior to any such damages claim.
In the event that Client is unable to provide the necessary information to register and report LCFS Credits, 3 Phases shall not be liable for any indirect, incidental, consequential, punitive or exemplary damages, whether in contract or in tort, including but not limited to lost profits, lost revenues, business interruption or claims of third parties.
Bankruptcy Code Acknowledgements.
The parties acknowledge and agree that this Agreement constitutes a “forward contracts” within the meaning of the United States Bankruptcy Code. Each party further agrees that, for purposes of this Agreement, the other party is not a “utility” as such term is used in Section 366 of the U.S. Bankruptcy Code, and each party waives and agrees not to assert the applicability of such Section 366 in any bankruptcy proceeding wherein such party is a debtor. The parties further agree that all Electricity delivered hereunder constitutes a “good” under Section 503(b)(9) of the U.S. Bankruptcy Code.
Miscellaneous.
Entire Agreement. The terms and conditions set forth in this Agreement constitute the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements between the parties with respect to the subject matter hereof.
Force Majeure. Neither party shall be liable in any respect for failure or delay in the fulfillment or performance of this Agreement, including but not limited to, the obligation to make deliveries, if performance is hindered or prevented, directly or indirectly by war, riots, embargo, national emergency, shortage or inability to obtain transportation or transfer facilities, plant breakdown, inability to secure fuel, power, material or labor, fire, flood, windstorm or other acts of God; strikes, lockouts, or other labor disturbances (whether among employees, of either party, either party’s suppliers, or other); delays, failure, and/or refusal of suppliers to provide materials; orders or acts of any government or governmental agency or authority (explicitly inclusive of any measures adopted by any state or federal agency or authority or any quasi-government entity or authority or any government-appointed entity or authority affecting energy policy and any measures adopted by the utility); or any other cause of like or different kind beyond such party’s reasonable control, and which by the exercise of reasonable diligence that the party is unable to prevent; it being understood, however, that neither party shall be under obligation to settle strikes, lockouts or other disputes (collectively "Force Majeure"). In the event that a party is unable to fulfill its obligations to the other under this Agreement resulting from any Force Majeure, then each party’s performance shall be excused to the extent of the effect of such Force Majeure.
Waiver, Amendment. None of the terms or conditions of this Agreement may be amended or waived except by a writing signed by the parties. The parties agree that no waiver, amendment, or modification of this Agreement shall be established by conduct, custom, or course of dealing. The failure by any party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same.
Assignability. The rights and obligations of Client under this Agreement are not assignable without the prior written consent of 3 Phases. The rights and obligations of 3 Phases under this Agreement may be acquired, pledged or assigned as by 3 Phases in its sole discretion.
Severability. If any part of this Agreement is found to be void or unenforceable, the provisions shall be severable and those provisions which are lawful shall remain in full force and effect.
Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Any dispute under this Agreement shall be resolved in the State or Federal Courts in Los Angeles County in the State of California.
Attorneys’ Fees. In the event that an action, suit or other proceeding is brought to enforce or interpret this Agreement or any part hereof or the rights or obligations of any party to this Agreement, the prevailing party will be entitled to recover from other party reasonable attorneys’ fees and direct out-of-pocket costs and disbursements associated with the dispute that are reasonably incurred by the prevailing party.
Notices. Notices given hereunder shall be in writing and delivered personally or sent by overnight courier to the address noted as the place of business below or as either party may hereafter furnish in writing to the other party. Overnight courier notices shall be deemed to be received one day after the date on which the notice is timely delivered to the courier. Notice to 3 Phases shall be made to: 3 Phases Renewables, Attn: General Counsel, 1228 E. Grand Ave., El Segundo, CA 90245. Notice to Client shall be made to the address indicated on the Service Agreement.
Confidentiality. Neither party shall disclose, directly or indirectly, any of the terms, conditions or covenants in this Agreement, except to its counsel, accountants and employees with a need to know, provided such persons are under an obligation by each party at least as restrictive as the one in this Agreement to keep the terms, conditions, or covenants in this Agreement, except in compliance with any foreign or federal or state law, regulation or rule, or pursuant to any judicial, legislative or administrative proceeding; provided that in the event of compliance with a proceeding the disclosing party first provide the nondisclosing party prompt notice of the mandated disclosure so as to provide the nondisclosing party sufficient time to object. In the event the parties entered into a separate nondisclosure agreement, the terms of such agreement shall be incorporated by reference herein. Each party may use the other’s name, logo, and any relevant project photos for marketing purposes without any further express consent from the other party.
7.10. Headings. Are inserted for convenience only and shall not define or limit any of the terms or conditions hereof.