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<br />3.1 All proprietary infonnation (as defined herein) obtained by Customer from Honeywell in conneotion with this Agreement will remain the property of Honeywell, and CustOO1er will not divulge such infonnation to any third party
<br />without prior written oOlUient of Honeywell. The tenn "proprietary infonnation" mel\l1S written infonnation (or oral infonnation reduoed to writing). or information in maohine-readable fonn. inoluding but not limited to software supplied to
<br />Customar whioh Honoywoll deems propristary or confidential and oharaoterizos as proprietary st the time of disolosure to Customer by marking or labeling the same 'Proprietary. "Confidential". or "Sensitivf'. The Customer shall inour no
<br />obliglltiOlUi hereunder with res"""t to proprietary infonnation whioh: (a) was in the Customer' a possession or was known to the Customer prior to its receipt from Honeywell; (b) is independently developed by the Customer without the
<br />utilization of such confidential infonnation of Honeywell; (0) is or beoomes publio knowledge through no fault of the Customer; (d) is or becomes avaiJable to the Customer from a source other than Honeyw~ll; (e) is or becomes available
<br />on an unre.lrioted basis to a third party from Honeywoll or from aomeone IlOting under its oontrol; (I) is reoeived by Customer after notifioation to Honeywoll that the Customer will not aooept any further information.
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<br />3.2 Customer agree. that Honeywoll may use nonproprietary information per\llininjJ to the Agreemen~ and the work perfonned under the Agreemen~ for press release., oase .tudi... data analysis, promotional purpo.... and other similar
<br />documents or statements to be publioly released, as long as Honeywell submits eny suoh document or statement to Customer for its approval, whioh will not be =asOl\llbly withheld.
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<br />.. lNSURANCE OBLIGATIONS
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<br />Honeywoll shall. at its own expenoe, oarry end maintain in force at all tim.. from the effeotive date of the ConlJllot through tlnal oompletion of the work the following insuranoe. It is agreed, however, that Honeywoll has the right to
<br />insure or self-insure eny of the insuranoe oovemg..listed below:
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<br />(a) Commercial General Liability Insurance to inolude conlJllotua1liability, products/completed operations liability with a combined single limit of usn $5,000,000 per oocUlT6f\oe. Suoh polioy will be written on en occurrence form hasis;
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<br />(b) If automobiles are used in the exeoution of the Confnlo~ Automobile Liability Insurance with a minimum combined single limit of usn $5,000.000 per OOOUlT6f\ce. Coverage will inolude oll owned, le....d, non-owned end hired
<br />vehiole..
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<br />(0) Where applioable. "All Risk" Proparty Insuranoe, including Builder'. Risk insuranoe. for physical damlllle to property whioh is assumed in the ConlJllot.
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<br />(d) Workers' COO1pensation Insunmce Coverage A - Statutory limits and Covemge B-Employer's Liability Insuranoe with limits of usn $1,000,000 for bodily iI1iury eaoh llOoident or disease.
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<br />Prior to the oommenoement of the ConlJllo~ Honeywoll will furnish evidenoe of said insurance ooverage in the form of a Memorandum of Insurance whioh is aooeasible at: hltP://olac...honnwell.comlmol, All insurance required in this
<br />Artiole will be written by oompanie. with a rating of no less than "A-, XII" by A.M. Be.t or equiV1l!ent I1lting agency. Honeywoll will endeavor to provide a thirty (30) day notioe ofoenoeUation or non-renewal to the Customer. In the event
<br />that a .elf-insured program is implemented, Honeywoll will provide adequate proof offinanoia1 responsibility.
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<br />S. HAZARDOUS SUBSTANCES. MOLD AND UNSAFE WORKING CONDITIONS
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<br />Sol Customer has not observed or reoeived notioe from eny source (fonnal or infonnal) of (a) Hll2Jlf(\ous Subslllnces or Mold, either airborne or on or within the waJls, floors, oeilinga. heating, ventilation and air oonditioning sy.tems,
<br />plumbina systems, structure, end other oomponenl5 of the Site. or within fluniture. fixtures, equipment, oontainers or pipeline. in a Site; or (b) oonditiolUi tha~ to Customer's knowledge. might oause or promote accwnuIation, conoenfnltion,
<br />growth or dispersion ofHll2Jlf(\ous Subslllno.. or Mold on or within such looatiolUi.
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<br />S.2 Honeywoll is not re.ponsible for determining whether the Covered Equipment or the temperature, humidity and ventilation setting> used by Customer, are appropriate for Customer and the Site except as speoificaIly provided
<br />in enattaohed Work Soope Dooument.
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<br />S.3 Ifany .uoh materials, situations or oonditiolUi, whether disolosed or no~ are in faot disoovered by Honeywoll or others and provide en unsafe condition for the performenoe of the work or SeM06ll, the disoovery of the oondition shall
<br />oomtitut. a cause beyond Honeywoll's reasonable oontrol end Honeywoll shaIl have the right to OCllllCl the work or Services until the area has been made safe by Customer or Customer'. representative. at Customer's expense. Honeywell
<br />sha1l have the right to tenninate this Agreement if Customer has not fully remedisted the unsafe oondition within sixty (60) days of discovery.
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<br />S.. Customer represents that Customer has not retained Honeywoll to discover. inspeo~ investigate. identitY. prevent or remediste Hll2Jlf(\ous Sub.llInces or Mold or conditiom csused by HazardOll& Subslllnc.. or Mold.
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<br />SO! TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER SHALL lNDEMNIFY AND HOLD HONEYWELL HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND COSTS OF WHATEVER
<br />NATURE,lNCLUDlNG BUT NOT LIMITED TO, CONSULTANTS' AND ATTORNEYS' FEES, DAMAGES FOR BODILY lNJURY AND PROPERTY DAMAGE, FlNES, PENALTIES, CL~UP COSTS AND COSTS
<br />ASSOCIATED WITH DELAY OR WORK STOPPAGE, TIIA T IN ANY WAY RESULTS FROM OR ARISES UNDER THE BREACH OF THE REPRESENTATIONS AND WARRANTIES J)Il TIDS SECTION, THE
<br />EXISTENCE OF MOLD OR A HAZARDOUS SUBSTANCE AT A SITE, OR THE OCCURRENCE OR EXISTENCE OF THE SITUATIONS OR CONDITIONS DESCRIBED IN THIS SECTION, WHETHER OR NOT
<br />CUSTOMER PROVIDES HONEYWELL ADVANCE NOTICE OF THE EXISTENCE OR OCCURRENCE AND REGARDLESS OF WHEN THE HAZARDOUS SUBSTANCE OR OCCURRENCE IS DISCOVERED OR
<br />OCCURS. TIDS lNDEMNIFICATlON SHALL SURVIVE TERMlNATlON OF TIDS AGREEMENT FOR WHATEVER REASON.
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<br />S.6 Customer is re'polUiible for the oontainment of eny end oll refrigerant .tored on or about the premises. Customer IlOCepts all responsibility for and agrees to indemnitY Honeywoll against any end oll olaims, damlllles, or oauses of
<br />sotion that we out of the storage, OOlUiwnption, lo.s end/or disposal of refrigenm~ exoept to the extent Honeywoll has brought refrigerant onsile end is directly and solely negligent for its mishandling.
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<br />6. WARRANTY AND LIMITATION OF LIABILITY
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<br />6.1 Honeywoll will replaoe or repair eny product Honeywell provides under this Agreement that fai\s within the warranty period (one) t year beoause of defeotive workmanship or materials. except to the ~t the failure results from
<br />Customer negligenoe, or from fire, lightning, water damage, or eny other oause beyond the oontrol of Honeywoll. This warranty applies to all products Honoywoll provides under this Agreemen~ whether or not manufaotured by Honeywoll.
<br />The warranty is etfeotive .. of the date of Customer aooeplllnoe of the product or the date Customer begins benefioial use of the produo~ whiohever ooours first.
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<br />6.2 THE WARRANTIES SET FORTH HERElN ARE EXCLUSIVE, AND HONEYWELL EXPRESSLY DISCLAIMS AND CUSTOMER EXPRESSLY WAIVES ALL OTHER WARRANTIES, WHETHER WRITTEN
<br />OR ORAL,IMPLlED OR STATUTORY,lNCLUDlNG BUT NOT LlMlTED TO, ANY WARRANTY OF WORKMANSIDP, CONSTRUCTION, MERCHANTARILlTY OR nTNESS FOR t\ PARTICULAR PURPOSE,
<br />WITH RESPECT TO THE SERVICES, EQUIPMENT, AND MATERIALS PROVIDED HEREUNDER. HONEYWELL SHALL NOT BE LIABLE FOR ANY PROPERTY DAMAGE, PERSQNAL lNJURY, LOSS OF
<br />lNCOME, EMOTIONAL DISTRESS, DEATH, LOSS OF USE, LOSS OF VALUE, ADVERSE HEALTH EFFECT OR ANY SPEClAL,lNCIDENTAL, lNDlRECT, SPECULATIVE, REMOTE, CONSEQUENTIAL,
<br />PUNITIVE, OR EXEMPLARY DAMAGES, ARlSlNG FROM, OR RELATlNG TO, TIDS LIMITED WARRANTY OR ITS BREACH.
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<br />6.3 Honeywoll mok.s no reproliOlltation or warranty, express, implied or otherwise, regarding Hazardous Substanoes or Mold. Honeywoll shaIl have no duty, obligation or liability, all of whioh Customer expressly waives, for any damage
<br />or olaim, whether known or unknown, including but not limited to property damlllle, peraooaJ iI1iury, lOllS ofinoome, emotional distress. death, lo.s of use, loss ofvaIue, adverse health effect or eny .peoisl, conaequential, punitive,
<br />exemplary or other damllll6S, regardless of whether such damlllles may be oaused by or otherwise associated with defeots in the Servioes. in whole or in part due to or arising from eny investigation, testing. analysis, monitoring, oleening.
<br />removal, disposal, abatemen~ remediation, decontamination, repair, replllOemen~ relocation, 10.. of use of building, or equipment end systems, or peraonal injury, death or disease in any way associated with Hll2Jlf(\ous Subslllnoes or Mold.
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<br />7. lNDEMNITY
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<br />Honeywollagrees to indemnitY and hold Customer end itsllllentsend employees hannIess from all olaims for bodily iI1iury and property damlllles to the extent suoh claims result from or arise under Honeywlill's negligent aotiOlUi or willful
<br />misoonduct in its perfonnanoe of the Work required under this Agreemen~ provided that suoh indemnity obligation is valid only to the extent (i) Customer give. Honeywoll immediate notioe in writing of en)' suoh claims end permits
<br />Honeywell, through oounsel of its choioe and Honeywell's .ole cost and expenoe, to I\I1Swer the claims end defend eny related suit and (ii) Customer giv.. Honeywoll all needed infonnation, aasislllnoe end ailthority. at Honeywoll's
<br />expenIIe, to enable Honeywoll to defend such suit. Honeywoll is not resp<mible for eny .ettlement without its written ooment. Honeywell is not liable for lOllS or damage caused by the negligenoe of Custom~ or any other party or such
<br />party's employees or agents. This obliglltion shaIl.urvive tennination of this Agreement. Notwithatanding the foregoing. Customer agree. that Honeywell will not be reaponsible for eny damlllles caused by Mold or any other fungus or
<br />biological material or Illlen~ ineluding but not limited to property damage, perIlOnal iI1iury, los. ofinoome, emotional distress. death, loss of use, loss of value, adverse health effeot or any special. consequential, punitive. exemplary or other
<br />damages, regardless of whether such damages may be caused by or otherwise associated with defects in the Servioes.
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<br />g. LIMITATION OF LIABILITY
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<br />U IN NO EVENT SHALL HONEYWELL BE LIABLE FOR ANY SPECIAL, lNCIDENTAL, lNDlRECT, SPECULATIVE, REMOTE, CONSEQUENTIAL, PUNlTlVE OR EXEMPLARY DAMAGES, WHETHER
<br />ARISlNG OUT OF OR AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (lNCLUDlNG NEGLIGENCE), STRICT LIABILITY, MOLD. MOISTURE, lNDOOR AIR QUALITY, OR OTHERWISE,
<br />ARISlNG FROM, RELATlNG TO, OR CONNECTED WITH THE SERVICES. EQUIPMENT, MATERIALS, OR ANY GOODS PROVIDED HEREUNDER.
<br />1.2 NOTWITHSTANDlNG ANYTHING TO THE CONTRARY HERElN, IF A PORTION OF THE SERVICES lNVOLVES THE lNSTALLATlON AND/OR MAINTENANCE OF SYSTEMS ASSOCIATED WITH
<br />SECURITY AND/OR THE DETECTION OF AND/OR REDUCTION OF RISK OF LOSS ASSOCIATED WITH FIRE, HONEYWELL'S TOTAL LIABILITY ARlSlNG OUT OF OR AS A JU;SULT OF ITS
<br />PERFORMANCE UNDER TIDS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF TIDS AGREEMENT.
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<br />9. EXC()SABLE DELAYS
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<br />Honeywell is nol liable for damages caused by delay or intemlption in Servioes due to fire, flood, corrosive substances in the air. strike. lookou~ dispute with workmen, inebility to obtain material or .ervicea, oommotion, war. aots of God,
<br />the presenoe of Hazardous Subslllnoes or Mold, or eny other oause beyond Honeywoll's ressonable oontrol. Should eny part of the .ystem or any Equipment be damlllled by fire. water, lightning. acts of God, the presenoe ofHll2Jlf(\ous
<br />Substances or Mold, third parti.. or eny other oause beyond the control of Honeywell. eny repeirll or replaoement will be paid for by Customer. In the event of eny .uch delay, date of shipment or performance will be extended by a period
<br />equal to the time lost by .....on of suoh delay. and Honeywoll will be entitled to reoover from Customer its reasonable oosts, overhead, and profit arising from suoh delay.
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<br />10. PATENT lNDEMNITY
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<br />10.1 Honeywoll shall. at its expeme, defend or, st its option, .ettle any suit that may be instituted against Customer for alleged inftingement of eny United State. petents related to the hardware or software menufaolured and provided by
<br />Honeywoll under this Agreement ("the equipment"), provided that a) .uoh aIleged infringement oonsists only in the use of.uoh equipment by itself end not as part o~ or in oombination with, eny other devic.., parts or software not provided
<br />by Honeywoll hereunder. b) Customer gives Honeywoll immediate notioe in writing of any .uch suit end permits Honeywell. through oounsel of its choioe, to I\I1Swer the oharge of infringement end defend suoh sui~ end 0) Customer give.
<br />Honeywell all needed infonnation, llSIistance and authority. at Honeywoll's expenae. to enable Honeywoll to defend .uoh suit.
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<br />10.2 Ifsuoh a suit has oocurred, orin Honeywoll's opinion is likely to ooour, Honeywell may, at its eleotion and expense: a) obtain for Customer the right to oontinue using suoh equipment; b) replace, oorreOl ormoditY it so that it is not
<br />infrinaina; or ifnoither a) or b) is not reaaonable than 0) remove .uch equipment end grent Customer a credit therefore, as depreciated.
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<br />10.3 In the 0.... ofa tlnaI award of damage. in any such .ui~ Honeywoll will pay .uch award. Honeywell will no~ however, be responsible for any .ettlement made without its written oonsent.
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