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Trade Secret
<br />ANY PARTICULAR PURPOSE OR ANY OTHER
<br />MATTER OF THE ENERGY SYSTEM, THE
<br />SYSTEM COMPONENTS, THE PROJECT, OR
<br />ANY SERVICES PROVIDED UNDER THIS
<br />AGREEMENT.
<br />13. Ownership of Project Documents and Design. All Design
<br />Documents for the Energy System shall be the sole and
<br />exclusive property of Customer. Customer grants Seller a
<br />perpetual, royalty free license to use the Design Documents for
<br />its own private use.
<br />14. Indemnification; Limitation of Damages.
<br />a. Subject to the limitations set forth below, Seller hereby
<br />indemnifies and holds harmless Customer and its officers,
<br />directors, members, consultants, representatives, agents,
<br />employees and affiliates against any damages, liabilities,
<br />losses, costs and expenses, including reasonable attorney
<br />fees and costs (collectively, "Damages") incurred or
<br />suffered by any of them caused by (i) any material breach
<br />of this Agreement by Seller, or (ii) the negligence, gross
<br />negligence or willful misconduct of Seller, its employees,
<br />or subcontractors in connection with the Project.
<br />b. Customer hereby indemnifies and holds harmless Seller
<br />and its officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates against
<br />any Damages incurred or suffered by any of them in any
<br />way arising out of, relating to, or in connection with (i) any
<br />material breach of this Agreement by Customer, or (ii) the
<br />negligence, gross negligence or willful misconduct of
<br />Customer or its employees in connection with the Project.
<br />c. A Party claiming indemnification will give the other Party
<br />prompt notice of the relevant claim and will reasonably
<br />cooperate with the indemnifying Party, at the indemnifying
<br />Party's expense, in the defense of such claim. The
<br />indemnifying Party shall control the defense and
<br />settlement of such claim, provided however that the
<br />indemnifying Party shall not agree to any settlement that
<br />affects the indemnified Party without the prior written
<br />consent of the indemnified Party, which approval shall not
<br />be unreasonably withheld. The indemnified Party may, at
<br />its option and its own expense, participate in the defense
<br />of any such claim with legal counsel of its own choice.
<br />d. IN NO EVENT SHALL EITHER PARTY BE LIABLE
<br />FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
<br />CONSEQUENTIAL OR PUNITIVE DAMAGES
<br />ARISING FROM, CONNECTED WITH OR
<br />RELATING TO THIS AGREEMENT, THE ENERGY
<br />SYSTEM OR THE PROJECT, OR TO SELLER'S
<br />OR CUSTOMER'S ACTS OR OMISSIONS IN
<br />CONNECTION WITH THE TRANSACTIONS
<br />CONTEMPLATED BY THIS AGREEMENT,
<br />WHETHER FOR NEGLIGENCE, STRICT
<br />LIABILITY, PRODUCT LIABILITY OR
<br />OTHERWISE, EXCEPT FOR ANY DAMAGES OF
<br />THIRD PARTIES FOR WHICH ONE PARTY IS
<br />REQUIRED TO INDEMNIFY THE OTHER PARTY.
<br />e. IN NO EVENT WILL SELLER'S LIABILITY,
<br />EXCLUDING ANY LIABILITY WITH RESPECT TO
<br />INDEMNIFICATION OF THIRD PARTY CLAIMS,
<br />WHETHER IN CONTRACT, IN TORT (INCLUDING
<br />GROSS NEGLIGENCE), IN STRICT LIABILITY OR
<br />OTHERWISE, EXCEED THE AMOUNT OF THE
<br />INSTALLATION COSTS PAID TO SELLER.
<br />15. Termination. This Agreement maybe terminated as follows
<br />a. Either Party may terminate this Agreement by providing
<br />the other Party written notice in the event (i) A Tariff is not
<br />secured within two (2) years after the date first written
<br />above, or (ii) the structural analysis indicates the Site is not
<br />capable of supporting the Project (except where Seller
<br />provides alternate equipment and/or structural retrofits or
<br />other requirements specified in the structural engineering
<br />report that render the Site suitable for installing the solar
<br />array in the Installation Costs). In addition, Seller may, in
<br />its sole discretion, terminate this Agreement by providing
<br />Customer written notice in the event the procurement
<br />times for solar equipment are too long to allow execution
<br />on the Project in accordance with the terms of this
<br />Agreement.
<br />b. Customer may terminate this Agreement by giving written
<br />notice to Seller at any time prior to completion of the
<br />Project in the event that: (i) Seller has breached any
<br />representation, warranty or covenant contained in this
<br />Agreement in any material respect, Customer has notified
<br />Seller of the breach, and the breach has continued without
<br />cure by Seller or written waiver by Customer for a period
<br />of thirty (30) days after the notice of breach, or (ii) upon
<br />sixty (60) days' prior notice to Seller if Seller has not
<br />achieved Final Project Completion on or prior to December
<br />31. 2019.
<br />c. Seller may terminate this Agreement by giving written
<br />notice to Customer at any time prior to completion of the
<br />Project in the event Customer has breached any
<br />representation, warranty or covenant contained in this
<br />Agreement in any material respect, Seller has notified
<br />Customer of the breach, and the breach has continued
<br />without cure by Customer or written waiver by Seller for a
<br />period of thirty (30) days after the notice of breach.
<br />d. If either Party terminates this Agreement pursuant to
<br />Sections 15(a), 15(b) or 15(c), all rights and obligations of
<br />the Parties under this Agreementwill terminate without any
<br />liability of any Party to any other Party, except with respect
<br />to Section 14, Section 16, and as otherwise provided in this
<br />Section 15, and except for any liability of any Party then in
<br />breach.
<br />e. Except as otherwise provided in this Section 15, the
<br />termination rights under this Section 15 are cumulative
<br />with and in addition to any other rights or remediesto which
<br />the Parties may be entitled at law or under this Agreement.
<br />16. General.
<br />a. Subordination to Utility Agreements. No portion of this
<br />Agreement is intended to conflict with any Utility
<br />Agreements to which Seller or Customer is a party. In the
<br />case of a conflict between the terms or conditions of this
<br />Agreement and the Utility Agreements, the terms and
<br />conditions of Utility Agreements shall control. The utility,
<br />or its successors and assigns, is a third -party beneficiary
<br />of the provision of this paragraph. Nothing in this
<br />Agreement shall prevent the utility, from fully enforcing the
<br />terms and conditions of Utility 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 an
<br />employee, employer, agent, principal, partner or joint
<br />venturer of the other.
<br />c. Entire Agreement. This Agreement and the Schedules
<br />hereto, together with any agreements referenced herein,
<br />constitute the entire agreement and understanding of the
<br />Parties relative to the subject matter hereof. The Parties
<br />
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