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17. Limitations of Liability.
<br />Except as otherwise provided in this Agreement or if an express remedy or calculation of liability is
<br />provided in this Agreement, neither Party shall be liable for any special, incidental, consequential or punitive
<br />damages based on breach of contract, breach of warranty, negligence, tort or any other legal theory.
<br />18. Force Majeure.
<br />(a) Neither Party shall be deemed to be in breach of this Agreement and no Event of Default shall
<br />be deemed to occur under this Agreement to the extent that such Party's delay or failure in the performance of
<br />its obligations under this Agreement (other than the obligation to pay money) is due to an event of Force
<br />Maj cure.
<br />(b) The Party claiming an event of Force Majeure shall (i) give the other Party reasonably prompt
<br />written notice describing the particulars of the occurrence, (ii) suspend performance for no greater scope and
<br />no longer duration than is required by the event of Force Majeure; (iii) use its reasonable commercial efforts to
<br />remedy its inability to perform; and (iv) when able to resume performance of its obligations under this
<br />Agreement, give the other Party written notice to that effect.
<br />19. Legal Effect of Contract.
<br />(a) Without limiting the applicability of any other provision of the U.S. Bankruptcy Code as
<br />amended (the `Bankruptcy Code"), the Parties acknowledge and agree that (i) this Agreement constitutes a
<br />"forward contract" as defined in Section 101 (25) of the Bankruptcy Code, (ii) Purchaser and Power Provider
<br />are forward contract merchants, (iii) that the rights of the Parties under the termination provisions of this
<br />Agreement will constitute contractual rights to liquidate transactions hereunder, (iv) that any payment related
<br />thereto will constitute a "settlement payment" as defined in Section 101 (51A) of the Bankruptcy Code, and (v)
<br />that the Parties are entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of
<br />the Bankruptcy Code.
<br />(b) The Parties acknowledge and agree that, for accounting or tax purposes, this Agreement is not
<br />and shall not be construed as a lease and, pursuant to Section 7701(e)(3) of the Code, this Agreement is and
<br />shall be deemed to be a service contract with respect to the sale to the Purchaser of electric energy produced at
<br />an alternative energy facility.
<br />20. Indemnification; Insurance.
<br />(a) Subject to Section 17, and to the extent allowed by law, each Party (each, an "Indemnifying
<br />Party") shall indemnify, defend and hold harmless the other Party, its employees, directors, officers, managers,
<br />members, shareholders, subsidiaries and agents (each, an "Indemnified Party') from, against and in respect of
<br />all liabilities, losses, lawsuits, penalties, claims, settlement payments, costs and expenses, interest, awards,
<br />judgments, damages, fines or demands (including the costs, expenses and reasonable attorneys' fees on
<br />account thereof) arising out of or related to the Indemnifying Party's (i) material breach of any covenant,
<br />obligation, representation, or warranty set forth in this Agreement and/or (ii) negligence or willful misconduct.
<br />In addition, Power Provider shall indemnify and hold Purchaser, and its employees, directors,
<br />officers, managers, members, shareholders, subsidiaries and agents harmless from and against all
<br />liabilities, losses, lawsuits, penalties, claims, settlement payments, costs and expenses, interest,
<br />awards, judgments, damages (including damage or destruction to real or personal property),
<br />death or injury, fines or demands (including Attorneys' Fees on account thereof) arising out of or
<br />related to (a) the performance of any of Power Provider's obligations hereunder or under the License,
<br />including without limitation, the installation, operation, maintenance, repair, replacement or removal of the
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