Contract - Guaranteed Energy Savings Proj No 124-015 - Veregy

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12 11.6 Waiver. VEREGY’s failure to insist upon the performance or fulfillment of any of CUSTOMER’s obligations under this Agreement shall not be deemed or construed as a waiver or relinquishment of the future performance of any such right or obligation hereunder. 11.7 If any provision of this Agreement or the application thereof to any circumstances shall be held to be invalid or unenforceable, then the remaining provisions of this Agreement or the application thereof to other circumstances shall not be affected hereby and shall be valid and enforceable to the fullest extent permitted by law. 11.8 Performance/Payment Bond. VEREGY shall furnish and pay for an approved one hundred percent (100%) combination performance and payment bond. This bond shall adhere to the requirements of IC 4-13.6-7-6, IC 4- 13.6-7-7 and IC 36-112-5 as amended and shall cover the faithful performance of the Agreement and the payment of all obligations arising thereunder, including reimbursement for any stored materials paid for but returned to materialmen, with such sureties as the CUSTOMER may approve. The combination bond shall remain in effect throughout the entire construction period and in addition for a period of one year form the date of final acceptance. VEREGY shall deliver the required bonds to the CUSTOMER prior to execution of the Contract by CUSTOMER unless authorized to the contrary in writing by the CUSTOMER. All bonds must be issued by bonding companies, which are licensed and approved by the Indiana Insurance Commission. 11.9 This bond covers only the performance and payment exposure associated with the performance of the construction portion of the work. The energy savings, additional savings, guaranteed savings, savings shortfalls are not under any circumstances covered under this bond or an obligation for which the surety is responsible. Separately, at the CUSTOMER’s discretion, the CUSTOMER may obtain at CUSTOMER’s expense an annual Energy Savings Bond equal to the Annual Energy Savings as indicated in Attachment E. 11.10 Escrow. Contemporaneously with the execution of this Agreement, the parties shall provide for the escrow of payments to VEREGY. 11.11 Ambiguities. The parties have each had the opportunity to review and negotiate the terms of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement. 11.12 Headings. The section headings contained herein are intended for convenience and reference only, and are not a part of this Agreement. 11.13 Authority to Enter into this Contract. The persons signing the Agreement on behalf of the parties are authorized to execute and accept contracts of this nature. 11.14 CUSTOMER Representations. To the extent applicable, the CUSTOMER warrants that it has the necessary power and authority to enter into this Agreement and this Agreement has been duly authorized by its duly elected representatives. This Agreement is a legal, valid and binding obligation of the CUSTOMER. ARTICLE 12 LIMIT OF LIABILITY – FIRE AND/OR SECURITY SYSTEMS 12.1 The parties agree that VEREGY is not an insurer; that the fire and/or security system and/or Service purchased herein is designed only to reduce the risk of loss; that CUSTOMER chose such system and/or Service from several levels of protection offered by VEREGY; that VEREGY will not be held liable for any loss, whether in tort or contract, which may arise from the failure of the system and/or Service; and that CUSTOMER will indemnify, defend and save VEREGY harmless from any and all loss, claims, actions, causes of actions or expense, including attorneys' fees, arising from the actual or alleged malfunction or nonfunction of the system and/or service. The parties further agree that this Agreement shall not confer any rights on the part of any person or entity not a party hereto, whether as a third-party beneficiary or otherwise. Because it is extremely difficult to assess actual damages arising from the failure of a system and/or service, the parties agree that if any liability is imposed on VEREGY for damages or personal injury to either CUSTOMER or any third party,