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Spheros Environmental | www.spherosenv.com | Page 10
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<br />providing similar services and in accordance with
<br />generally recognized industry standards. Spheros shall
<br />furnish all tools, labor, and supplies in such quantities
<br />and of the proper quality to professionally and timely
<br />perform the Services. Spheros shall not be liable for a
<br />breach of the warranty set forth in this Section XI unless
<br />Client gives written notice of the defective Services,
<br />reasonably described, to Spheros within thirty (30) days
<br />of the time when Client discovers or ought to have
<br />discovered that the Services were defective. Subject to
<br />the foregoing, Spheros shall, in its sole discretion,
<br />either (a) repair or re-perform such Services; or (b)
<br />credit or refund the price of such Services at the pro
<br />rata contract rate. THE REMEDIES SET FORTH IN THIS
<br />SECTION XI SHALL BE CLIENT’S SOLE AND EXCLUSIVE
<br />REMEDY AND Spheros’S ENTIRE LIABILITY FOR ANY
<br />BREACH OF THE LIMITED WARRANTY SET FORTH
<br />HEREIN.
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<br />XII. DISCLAIMER OF WARRANTIES. EXCEPT FOR
<br />THE WARRANTY SET FORTH IN SECTION XII ABOVE,
<br />Spheros MAKES NO WARRANTY WHATSOEVER WITH
<br />RESPECT TO THE SERVICES, INCLUDING ANY (a)
<br />WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF
<br />FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY
<br />OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT
<br />OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD
<br />PARTY; WHETHER EXPRESS OR IMPLIED BY LAW,
<br />COURSE OF DEALING, COURSE OF PERFORMANCE,
<br />USAGE OF TRADE, OR OTHERWISE.
<br />
<br />XIII. INDEPENDENT CONTRACTOR. Spheros is an
<br />independent contractor, and is responsible for the
<br />means and methods of carrying out the scope of
<br />services and for the safety of its employees and agents.
<br />Spheros retains the right to require that the services
<br />provided by Spheros meet specific standards without
<br />regard to the manner and means of accomplishment
<br />thereof. Nothing contained in this Agreement shall be
<br />construed as creating any agency, partnership, joint
<br />venture or other form of joint enterprise, employment,
<br />or fiduciary relationship between the Parties, and
<br />neither Party shall have authority to contract for or bind
<br />the other Party in any manner whatsoever.
<br />
<br />XIV. INDEMNIFICATION. Client agrees, to the
<br />fullest extent permitted by law, to defend, indemnify,
<br />and hold harmless Spheros and their respective
<br />officers, directors and employees against damages,
<br />liabilities or costs, including reasonable attorneys’ fees
<br />and defense costs, arising out of or resulting from (a)
<br />bodily injury, death of any person, or damage to real or
<br />tangible, personal property resulting from negligent or
<br />willful acts or omissions of Client and (b) Client’s breach
<br />of any representation, warranty, or obligation of Client
<br />in this Agreement. This Section XIV shall survive the
<br />expiration or termination of this Agreement.
<br />
<br />XV. LIMITATION OF LIABILITY. IN NO EVENT
<br />SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY
<br />OR TO ANY THIRD PARTY FOR ANY LOSS OF USE,
<br />REVENUE OR PROFIT OR LOSS OF DATA OR
<br />DIMINUTION IN VALUE, OR FOR ANY
<br />CONSEQUENTIAL, INCIDENTAL, INDIRECT,
<br />EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES
<br />WHETHER ARISING OUT OF BREACH OF CONTRACT,
<br />TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
<br />REGARDLESS OF WHETHER SUCH DAMAGES WERE
<br />FORESEEABLE AND WHETHER OR NOT SUCH PARTY
<br />HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
<br />DAMAGES, AND NOTWITHSTANDING THE FAILURE OF
<br />ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL
<br />PURPOSE. IN NO EVENT SHALL Spheros’S AGGREGATE
<br />LIABILITY ARISING OUT OF OR RELATED TO THIS
<br />AGREEMENT, WHETHER ARISING OUT OF OR RELATED
<br />TO BREACH OF CONTRACT, TORT (INCLUDING
<br />NEGLIGENCE) OR OTHERWISE, EXCEED THE
<br />AGGREGATE AMOUNTS PAID OR PAYABLE TO Spheros
<br />PURSUANT TO THE APPLICABLE ORDER
<br />CONFIRMATION.
<br />
<br />XVI. INSURANCE. Spheros shall procure and
<br />maintain the following insurance throughout the term
<br />of this Agreement: (a) Commercial General Liability; (b)
<br />Automobile Liability; (c) Workers’ Compensation and
<br />Employer’s Liability; and (d) Professional Liability.
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<br />XVII. FORCE MAJEURE. Neither Party shall be liable
<br />nor deemed to be in default for any delay or failure in
<br />performance under this Agreement resulting from the
<br />acts of God, civil or military authority, material change
<br />of law, acts of public enemy, war, accidents, fires,
<br />explosions, earthquakes, floods, failure of
<br />transportation, regional emergencies, strikes or other
<br />industrial interruptions by either Party’s employees, or
<br />any similar or dissimilar cause beyond the reasonable
<br />control of either Party. The impacted Party shall resume
<br />the performance of its obligations as soon as
<br />reasonably practicable after the removal of the cause.
<br />In the event that the impacted Party’s failure or delay
<br />remains uncured for a period of fifteen (15) consecutive
<br />days following written, either Party may thereafter
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