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Trade Secret
<br />IMPLIED OR STATUTORY, INCLUDING
<br />WITHOUT LIMITATION ANY WARRANTY AS
<br />TO THE INSTALLATION, DESIGN,
<br />DESCRIPTION, QUALITY,
<br />MERCHANTABILITY, COMPLETENESS,
<br />USEFUL LIFE, ENERGY PRODUCTION,
<br />PROJECTED ECONOMIC VIABILITY,
<br />FINANCIAL DATA AND PROJECTIONS, ROOF
<br />PERFORMANCE, FITNESS FOR ANY
<br />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 Proiect Documents and Desian. All
<br />Design Documents for the Energy System shall be the sole
<br />and exclusive property of Customer. Customer grants
<br />Seller a perpetual, royalty free license to use the Design
<br />Documents for 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
<br />officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates
<br />(each a "Customer 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 caused by (i) any material breach of this
<br />Agreement by Seller, or (ii) the negligence, gross
<br />negligence or willful misconduct of Seller, its
<br />employees, or subcontractors in connection with the
<br />Project.
<br />b. Customer hereby indemnifies and holds harmless
<br />Seller and its officers, directors, members, consultants,
<br />representatives, agents, employees and affiliates
<br />(each a "Seller 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 material breach of this Agreement by Customer, or
<br />(ii) the negligence, gross negligence or willful
<br />misconduct of Customer or its employees in
<br />connection with the Project.
<br />c. Any Customer Indemnified Party or Seller 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 the 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 />d. IN NO EVENT SHALL EITHER PARTY BE
<br />LIABLE FOR ANY INDIRECT, SPECIAL,
<br />INCIDENTAL, CONSEQUENTIAL OR
<br />PUNITIVE DAMAGES ARISING FROM,
<br />CONNECTED WITH OR RELATING TO THIS
<br />AGREEMENT, THE ENERGY SYSTEM OR THE
<br />PROJECT, OR TO SELLER'S OR
<br />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
<br />OF THIRD PARTIES FOR WHICH ONE PARTY
<br />IS REQUIRED TO INDEMNIFY THE OTHER
<br />PARTY.
<br />e. IN NO EVENT WILL SELLER'S LIABILITY,
<br />EXCLUDING ANY LIABILITY WITH RESPECT
<br />TO INDEMNIFICATION OF THIRD PARTY
<br />CLAIMS, WHETHER IN CONTRACT, IN TORT
<br />(INCLUDING GROSS NEGLIGENCE), IN
<br />STRICT LIABILITY OR OTHERWISE, EXCEED
<br />THE AMOUNT OF THE INSTALLATION COSTS
<br />PAID TO SELLER.
<br />15. Termination. This Agreement may be terminated as
<br />follows
<br />a. Either Party may terminate this Agreement by
<br />providing the other Party written notice in the event (i)
<br />the Rebate is not secured for the Project within two (2)
<br />years after the date first written above, or (ii) the
<br />structural analysis indicates the Site is not capable of
<br />supporting the Energy System (except where Seller
<br />includes and provides in the Installation Cost, alternate
<br />equipment and/or structural retrofits or other
<br />requirements specified in the structural engineering
<br />report for the Energy System that render the Site
<br />suitable for installing the Energy System).
<br />b. Customer may also terminate this Agreement by giving
<br />written notice to Seller at any time prior to the Final
<br />Project Completion: (i) in the event that Seller has
<br />breached any representation, warranty or covenant
<br />contained in this Agreement in any material respect,
<br />Customer has notified Seller of such breach, and the
<br />breach has continued without cure by Seller or written
<br />waiver by Customer for a period of thirty (30) days after
<br />the notice of breach, or (ii) upon sixty (60) days' prior
<br />notice to Seller if Seller has not achieved Final Project
<br />Completion on or prior to December 31, 2019.
<br />c. Seller in its sole discretion may also terminate this
<br />Agreement by providing Customer written notice: (i) in
<br />the event the procurement times for solar equipment
<br />are too long to allow execution on the Project in
<br />accordance with the terms of this Agreement, or (ii) in
<br />the event Customer has breached any representation,
<br />warranty or covenant contained in this Agreement in
<br />any material respect, Seller has notified Customer of
<br />the breach, and the breach has continued without cure
<br />by Customer or written waiver by Seller for a period of
<br />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
<br />of the Parties under this Agreement will terminate
<br />without any liability of any Party to any other Party,
<br />except with respect to Section 14, Section 16, and as
<br />otherwise provided in this Section 15, and except for
<br />any liability of any Party then in breach.
<br />e. Except as otherwise provided in this Section 15, the
<br />termination rights under this Section 15 are cumulative
<br />
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