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the Indemnifying Party,assume the defense of any Claim if the Indemnifying Party fails to assume the defense of the
<br /> Claim within a reasonable time. Neither Party shall settle any Claim covered by this Section 17(b1 unless it has
<br /> obtained the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
<br /> The Indemnifying Party shall have no liability under this Section 17(b) for any Claim for which such notice is not
<br /> provided if that the failure to give notice prejudices the Indemnifying Party.
<br /> c. Environmental Indemnification. Seller shall indemnify, defend and hold harmless all of Purchaser's Indemnified
<br /> Parties from and against all Liabilities arising out of or relating to the existence at, on, above, below or near the
<br /> Premises of any Hazardous Substance (as defined in Section 17(c)(i))to the extent deposited, spilled or otherwise
<br /> caused by Seller or any of its contractors or agents. Purchaser shall indemnify, defend and hold harmless all of
<br /> Seller's Indemnified Parties from and against all Liabilities arising out of or relating to the existence at,on,above,
<br /> below or near the Premises of any Hazardous Substance,except to the extent deposited,spilled or otherwise caused
<br /> by Seller or any of its contractors or agents. Each Party shall promptly notify the other Party if it becomes aware of
<br /> any Hazardous Substance on or about the Premises or the Premises generally or any deposit,spill or release of any
<br /> Hazardous Substance.
<br /> i. "Hazardous Substance" means any chemical, waste or other substance (A) which now or hereafter
<br /> becomes defined as or included in the definition of "hazardous substances," "hazardous wastes,"
<br /> "hazardous materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances,"
<br /> "toxic pollutants,""pollution,""pollutants,""regulated substances," or words of similar import under any
<br /> laws pertaining to the environment, health, safety or welfare, (B)which is declared to be hazardous,toxic,
<br /> or polluting by any Governmental Authority, (C) exposure to which is now or hereafter prohibited,limited
<br /> or regulated by any Governmental Authority, (D)the storage,use,handling,disposal or release of which is
<br /> restricted or regulated by any Governmental Authority,or(E)for which remediation or cleanup is required
<br /> by any Governmental Authority.
<br /> d. Limitations on liability.
<br /> i. No Consequential Damages. Except with respect to indemnification for third party claims pursuant to this
<br /> Section 17 and damages that result from the willful misconduct of a Party, neither Party nor its directors,
<br /> officers, shareholders, partners, members, agents and employees subcontractors or suppliers shall be liable
<br /> for any indirect, special,incidental,exemplary,or consequential loss or damage of any nature arising out of
<br /> their performance or non-performance hereunder even if advised of such. The Parties agree that(1)in the
<br /> event that Seller is required to recapture any Tax Credits or other tax benefits as a result of a breach of this
<br /> Agreement by Purchaser, such recaptured amount shall be deemed to be direct and not indirect or
<br /> consequential damages, and (ii) in the event that Seller is retaining the Environmental Attributes produced
<br /> by the System, and a breach of this Agreement by Purchaser causes Seller to lose the benefit of sales of
<br /> such Environmental Attributes to third parties,the amount of such lost sales shall be direct and not indirect
<br /> or consequential damages.
<br /> 18. Force Majeure.
<br /> a. "Force Majeure" means any event or circumstances beyond the reasonable control of and without the fault or
<br /> negligence of the Party claiming Force Majeure. It shall include, without limitation, failure or interruption of the
<br /> production, delivery or acceptance of electricity due to: an act of god;war(declared or undeclared);sabotage;riot;
<br /> insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo;civil
<br /> strike, work stoppage,slow-down,or lock-out;explosion; fire;earthquake;abnormal weather condition or actions of
<br /> the elements;hurricane;flood;lightning;wind;drought;the binding order of any Governmental Authority(provided
<br /> that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any
<br /> Governmental Authority(provided that such action has been timely requested and diligently pursued);unavailability
<br /> of electricity from the utility grid,equipment,supplies or products(but not to the extent that any such availability of
<br /> any of the foregoing results from the failure of the Party claiming Force Majeure to have exercised reasonable
<br /> diligence);and failure of equipment not utilized by or under the control of the Party claiming Force Majeure.
<br /> b. Except as otherwise expressly provided to the contrary in this Agreement,if either Party is rendered wholly or partly
<br /> unable to timely perform its obligations under this Agreement because of a Force Majeure event,that Party shall be
<br /> excused from the performance affected by the Force Majeure event(but only to the extent so affected)and the time
<br /> for performing such excused obligations shall be extended as reasonably necessary; provided, that: (i) the Party
<br /> affected by such Force Majeure event,as soon as reasonably practicable after obtaining knowledge of the occurrence
<br /> of the claimed Force Majeure event, gives the other Party prompt oral notice, followed by a written notice
<br /> reasonably describing the event; (ii) the suspension of or extension of time for performance is of no greater scope
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