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Trade Secret
<br />equipment or facilities or construct or allow any
<br />construction of a structure or structures ("New
<br />Construction") near the Leased Space if such New
<br />Construction will interfere with the Energy System or its
<br />performance. Customer shall not move, modify,
<br />remove, adjust, alter, change, replace, reconfigure or
<br />operate the Energy System or any part of it during the
<br />term of the Agreement without prior written direction or
<br />approval of Tenant, except if there is an occurrence
<br />reasonably deemed by Customer to be a bona fide
<br />emergency, in which case Customer will immediately
<br />notify Tenant of such emergency and Customer's
<br />proposed actions. Customer shall be responsible for,
<br />and promptly notify Tenant, of any damage to the
<br />Energy System caused by the Customer or its
<br />employees, invitees or agents, and shall promptly pay
<br />Tenant the costs to repair such damage to the Energy
<br />System, along with any lost Rebate revenue.
<br />17. Insurance.
<br />a. General Liability and Property Insurance. Customer
<br />shall keep the Energy System insured against loss by
<br />fire, theft, hail and wind and such other hazard as
<br />Tenant shall reasonably require with an insurance
<br />company acceptable to Tenant in its reasonable
<br />discretion, at all times will insure the Energy System at
<br />an amount equal to the Installation Cost (defined in the
<br />Purchase Agreement) and will provide Tenant with a
<br />Certificate of Insurance that names Tenant as an
<br />additional insured and loss payee. Customer shall also
<br />secure and maintain adequate comprehensive general
<br />liability insurance against liability related to the Energy
<br />System. Customer shall provide Tenant with evidence
<br />of having acquired such insurance coverages prior to
<br />the Final Project Completion date and on an annual
<br />basis thereafter. The loss, injury or destruction of the
<br />Energy System shall not release Customer from
<br />payment as provided in this Agreement. Anyinsurance
<br />policies obtained by Customer shall provide that such
<br />policy of insurance cannot be terminated or cancelled
<br />by the insurer without thirty (30) days prior written
<br />notice to Tenant. Customer is responsible for any
<br />deductibles due under the insurance policies for
<br />casualties and will pay Tenant said deductible along
<br />with insurance proceeds received to repair the Energy
<br />System, and Tenant's lost Rebate revenue resulting
<br />from the casualty. Customer's failure or refusal to
<br />repair and recommission an Energy System following
<br />a loss shall constitute a breach of this Agreement.
<br />b. Workers' Compensation Insurance and Employers'
<br />Liability Insurance. In accordance with Minnesota
<br />state law, Tenant shall maintain in force workers'
<br />compensation insurance for all of its employees.
<br />Tenant shall also maintain employer's liability coverage
<br />in an amount of not less than One Million Dollars
<br />($1,000,000.00) per accident. Tenant shall also secure
<br />and maintain adequate comprehensive general liability
<br />insurance against liability related to the Leased
<br />Premises. Upon request, Tenant will provide
<br />Customer with a Certificate of Insurance.
<br />18. Indemnification.
<br />a. Tenant shall indemnify and hold harmless Customer
<br />and its officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates
<br />(each a Tenant Indemnified Party") against any
<br />damages, liabilities, losses, costs and expenses,
<br />including reasonable attorney fees and costs
<br />(collectively, "Damages") incurred or suffered by any
<br />of them in any way arising out of, relating to, or in
<br />connection with (i) any breach of this Agreement by
<br />Tenant, or (ii) the negligence, gross negligence or
<br />willful misconduct of Tenant or its employees or agents
<br />in connection with the transactions contemplated by
<br />this Agreement.
<br />b. Tenant shall indemnify Customer from any mechanic's,
<br />materialman's, or other lien with respectto the Property
<br />or the Leased Property to the extent such lien is
<br />attributable to Tenant's failure to pay the Installation
<br />Cost or other costs incurred in the performance of
<br />Tenant's obligations for maintenance and repair of the
<br />Energy System.
<br />c. Customer shall indemnify and hold harmless Tenant
<br />and its officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates
<br />(each a Customer Indemnified Party") against any
<br />Damages incurred or suffered by any of them in any
<br />way arising out of, relating to, or in connection with (i)
<br />any breach of this Agreement by Customer, or (ii) the
<br />negligence, gross negligence or willful misconduct of
<br />Customer or its employees or agents in connection
<br />with the transactions contemplated by this Agreement.
<br />d. A Customer Indemnified Party or Tenant Indemnified
<br />Party claiming indemnification hereunder must give
<br />each Party prompt notice of the relevant claim and
<br />each Party agrees to cooperate with each other Party,
<br />at its own expense, in the defense of such claim.
<br />Notwithstanding the forgoing, any Party from whom
<br />indemnification is sought, shall control the defense and
<br />settlement of such claim, provided however that such
<br />Party shall not agree to any settlement that materially
<br />adversely affects the other Party without the prior
<br />written consent of such Party, which approval shall not
<br />be unreasonably withheld. Without limiting or
<br />diminishing the foregoing, any Party may, at its option
<br />and its own expense, participate in the defense of any
<br />such claim with legal counsel of its own choice.
<br />19. General.
<br />a. Subordination to Utility Rebate Agreement. No
<br />portion of this Agreement is intended to conflict with
<br />any Utility Rebate Agreements (the "Utility Rebate
<br />Agreements") to which Tenant or Customer is a party.
<br />In the case of a conflict between the terms or conditions
<br />of this Agreement and the Utility Rebate Agreements,
<br />the terms and conditions of Utility Rebate Agreements
<br />shall control. The Utility, or its successors and assigns,
<br />is a third -party beneficiary of the provision of this
<br />paragraph. Nothing in this Agreement shall prevent the
<br />Utility, from fully enforcing the terms and conditions of
<br />Utility Rebate Agreements.
<br />b. Relationship of the Parties. The Parties shall for all
<br />purposes be considered independent contractors with
<br />respect to each other, and neither shall be considered
<br />an employee, employer, agent, principal, partner or
<br />joint venturer of the other.
<br />c. Entire Agreement. This Agreement and all the
<br />schedules, exhibits and attachments hereto, together
<br />with any agreement reference herein, constitute the
<br />entire agreement and understanding of the Parties
<br />relative to the subject matter hereof. The Parties have
<br />not relied upon any promises, representations,
<br />warranties, agreements, covenants or undertakings,
<br />other than those expressly set forth or referred to
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