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Trade Secret
<br />Installation Cost (as defined in the Purchase Agreement)
<br />and will provide Tenantwith a Certificate of Insurance that
<br />names Tenant as an additional insured and loss payee.
<br />Customer shall also secure and maintain adequate
<br />comprehensive general liability insurance against liability
<br />related to the Energy System. Customer shall provide
<br />Tenant with evidence of having acquired such insurance
<br />coverages prior to the Final Project Completion date and
<br />on an annual basis thereafter. The loss, injury or
<br />destruction of the Energy System shall not release
<br />Customer from payment as provided in this Agreement.
<br />Any insurance policies obtained by Customer shall provide
<br />that such policy of insurance cannot be terminated or
<br />cancelled by the insurer without thirty (30) days prior
<br />written notice to Tenant. Customer is responsible for any
<br />deductibles due under the insurance policies for casualties
<br />and will pay Tenant said deductible, along with insurance
<br />proceeds received to repair the Energy System to its
<br />original specification. Customer's failure or refusal to
<br />repair and recommission an Energy System following a
<br />loss shall constitute a breach of this Agreement.
<br />Workers' Compensation Insurance and Employers'
<br />Liability Insurance. In accordance with Minnesota state
<br />law, Tenant shall maintain in force workers' compensation
<br />insurance for all of its employees. Tenant shall also
<br />maintain employer's liability coverage in an amount of not
<br />lessthan One Million Dollars ($1,000,000.00) peraccident.
<br />Tenant shall also secure and maintain adequate
<br />comprehensive general liability insurance against liability
<br />related to the Leased Premises. Upon request, Tenant will
<br />provide Customer with a Certificate of Insurance.
<br />17. Indemnification.
<br />a. Tenant shall indemnify and hold harmless Customer and
<br />its officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates against
<br />any damages, liabilities, losses, costs and expenses,
<br />including reasonable attorney fees and costs (collectively,
<br />"Damages") incurred or suffered by any of them in anyway
<br />arising out of, relating to, or in connection with (i) any
<br />breach of this Agreement by Tenant, or (ii) the negligence,
<br />gross negligence or willful misconduct of Tenant or its
<br />employees or agents in connection with the transactions
<br />contemplated by this Agreement.
<br />b. Tenant shall indemnify Customer from any mechanic's,
<br />materialman's, or other lien with respect to the Property or
<br />the Leased Property to the extent such lien is attributable
<br />to Tenant's failure to pay the Installation Cost.
<br />c. Customer shall indemnify and hold harmless Tenant and
<br />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 />breach of this Agreement by Customer, or (ii) the
<br />negligence, gross negligence or willful misconduct of
<br />Customer, its employees, agents or invitees in connection
<br />with the transactions contemplated by this Agreement.
<br />d. 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 />18. General.
<br />a. Subordination to Utility Agreements. No portion of this
<br />Agreement is intended to conflict with any Utility
<br />Agreements (the "Utility Agreements") to which Tenant or
<br />Customer is a party. In the case of a conflict between the
<br />terms or conditions of this Agreement and the Utility
<br />Agreements, the terms and conditions of Utility
<br />Agreements shall control. The Utility, or its successors
<br />and assigns, is a third -party beneficiary of the provision of
<br />this paragraph. Nothing in this Agreement shall prevent
<br />the Utility, from fully enforcing the terms and conditions of
<br />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 agreement reference herein,
<br />constitute the entire agreement and understanding of the
<br />Parties relative to the subject matter hereof. The Parties
<br />have not relied upon any promises, representations,
<br />warranties, agreements, covenants or undertakings, other
<br />than those expressly set forth or referred to herein. This
<br />Agreement replaces and supersedes any and all prior oral
<br />or written agreements, representations and discussions
<br />relating to such subject matter.
<br />d. Survival of Representations. All representations,
<br />warranties, covenants and agreements of the Parties
<br />contained in this Agreement, or in any instrument,
<br />certificate, exhibit or other writing provided for in it, shall
<br />survive the execution of this Agreement and the
<br />consummation of the transactions contemplated herein.
<br />e. Amendment. This Agreement may be amended or
<br />modified only by a writing executed by the Parties to this
<br />Agreement. No custom or practice of the Parties at
<br />variance with the terms hereof shall have any effect.
<br />f. Notices. All notices to be given under this Agreement
<br />shall be in writing and shall be effectively given upon
<br />personal delivery, facsimile or email transmission (with
<br />confirmation of receipt), delivery by overnight delivery
<br />service or three days following deposit in the United States
<br />Mail (certified or registered mail, postage prepaid, return
<br />receipt requested).
<br />g. No Delay. No delay or failure on the part of any Party
<br />hereto to exercise any right, power or privilege hereunder
<br />shall operate as a waiver thereof.
<br />h. Force Maleure. Neither Party will be liable to the other
<br />Party for any delay, error, failure in performance or
<br />interruption of performance resulting from causes beyond
<br />its reasonable control, including without limitation fires,
<br />flood, accidents, explosions, sabotage, strikes or other
<br />labor disturbances, civil commotion, riots, invasions, wars,
<br />acts of God, acts of government, terrorism or any cause
<br />(whether similar or dissimilar to the foregoing) beyond the
<br />reasonable control of the Party.
<br />i. Governing Law / Venue. This Agreement shall be
<br />governed by and construed in accordance with the laws of
<br />the State of Minnesota without regard to its conflicts of laws
<br />principals. Any lawsuit brought in connection with this
<br />Agreement shall be brought only in a court of general
<br />jurisdiction in Hennepin County, Minnesota.
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