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Confidential & Proprietary Information of Ameresco, Inc. Page 15 of 54
<br />any payment and performance bonds associated with this Agreement guarantee only the performance
<br />of the installation portion of this Agreement, and shall not be construed to guarantee the performance
<br />of: (1) any efficiency or energy savings guarantees, (2) any support or maintenance service agreement,
<br />or (3) any other guarantees or warranties with terms beyond one (1) year in duration from the
<br />completion of the installation portion of this Agreement.
<br />(c)By Customer: Without limiting any of its obligations or liabilities under this Agreement,
<br />Customer shall provide and maintain at its expense, insurance coverage consistent with the
<br />requirements of Subsection 10(j) above, and its obligations under this Agreement.
<br />SECTION 15 Indemnification and Limitation of Liability
<br />(a)Anything in this Agreement to the contrary notwithstanding, neither Party nor its respective
<br />officers, directors, agents, employees, parent, subsidiaries or affiliates or their affiliates’ officers,
<br />directors, agents or employees shall be liable, irrespective of whether such claim of liability is based
<br />upon breach of warranty, tort, (including negligence, whether of any of the Parties to this Agreement
<br />or others), strict liability, contract, operation of law or otherwise, to the other Party, or its affiliates,
<br />officers, directors, agents, employees, successors or assigns, or their respective insureds, for incidental,
<br />delay, punitive or consequential damages connected with, related to or arising from performance or
<br />non-performance of this Agreement, or any action or inaction in connection therewith including claims
<br />in the nature of lost revenues, income or profits (other than payments expressly required and due under
<br />this Agreement), and increased expense of, curtailment, reduction in or loss of power generation
<br />production or equipment used therefor.
<br />(b)Ameresco agrees to indemnify and hold Customer harmless from and against any and all third
<br />party claims for damages but only to the extent such damages arise by reason of bodily injury, death or
<br />damage to property caused by Ameresco’s negligence or willful misconduct. In
<br />no event, however, shall Ameresco be obligated to indemnify Customer to the extent that any such
<br />injury or damage is caused by the negligence of Customer or any entity for which Customer is legally
<br />responsible.
<br />(c)Customer agrees to indemnify and hold harmless Ameresco, its officers, agents and employees,
<br />from and against any and all third party claims for damages but only to the extent such damages arise
<br />by reason of bodily injury, death or damage to property caused by Customer’s negligence or willful
<br />misconduct. In no event, however, shall Customer be obligated to indemnify Ameresco to the extent
<br />that such injury or damage is caused by the negligence of Ameresco or any entity for which Ameresco
<br />is legally responsible.
<br />SECTION 16 Agreement Interpretation and Venue
<br />Each Party hereto has had ample opportunity to review and comment on this Agreement. This
<br />Agreement shall be read and interpreted according to its plain meaning and an ambiguity shall not be
<br />construed against either Party.
<br />This Agreement shall be governed as to all matters, whether of validity, interpretations, obligations,
<br />performance or otherwise exclusively by the laws of the State in which the Project is located (the
<br />“State”). Regardless of where actually delivered and accepted, this Agreement shall be deemed to have
<br />been delivered and accepted by the Parties in the State of Indiana. Any mediation and legal
<br />proceedings involving the negotiation, formation, interpretation, or enforcement of this Agreement
<br />may be brought in any court located in St. Joseph County, Indiana having jurisdiction over the case
<br />unless the parties agree to a different venue.
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