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liabilities, damages, costs, expenses (including reasonable attorney's fees and expenses), claims, or
<br /> judgments arising out of or in connection with any negligent act and/or omission of Participant and/or
<br /> its officers, employees and agents related to participation in the TOD Program; provided, that
<br /> Participant shall not have any indemnification and hold harmless obligation to the District for claims,
<br /> causes of action, obligations, demand and liabilities arising from the negligence of District, and its
<br /> elected officials,officers,employees,agents and/or other District service providers and its employees
<br /> ad agents.
<br /> 2) Participant hereby releases and forever discharges the District, and its elected officials, officers,
<br /> employees, agents, and other District service providers of and from any and all claims, causes of
<br /> action, obligations, demands and liabilities, of every name and nature, both in law and at equity,
<br /> known and unknown, arising from or in connection with participation in the TOD Program, except
<br /> that this release and discharge shall not apply to claims, causes of action, obligations, demand and
<br /> liabilities arising from the negligence of District,and its elected officials,officers,employees,agents
<br /> and other District service providers.
<br /> 3) Nothing contained in this Agreement shall be construed to create a liability or a right of
<br /> indemnification by any third party.
<br /> 4) The provisions of this Release and Indemnification section shall survive the expiration or termination
<br /> of this Agreement with respect to any event occurring prior to such expiration or termination.
<br /> E. OWNERSHIP OF MATERIALS AND PUBLICITY
<br /> Participant also agrees that:
<br /> 1) The District shall own all materials prepared for Participants in connection with the TOD Program,
<br /> including reports.Except as otherwise required by law,the District agrees not to disclose identifiable
<br /> individual Participant energy usage or savings metrics without Participant's express permission.
<br /> Participant recognizes that the District is a Washington municipal corporation and is subject to the
<br /> Washington Public Records Act, R.C.W. Chapter 42.56. The District shall have no liability
<br /> whatsoever to Participant or any other person for or as a result of any public disclosure or copying of
<br /> any materials when, in the opinion of District's counsel, the District is compelled to permit such
<br /> disclosure or copying or else risk civil or criminal liability or penalty.
<br /> 2) Participant shall not distribute any reports publicly without prior written permission from the District.
<br /> Participants may distribute reports prepared by their employees in connection with the TOD Program
<br /> to potential employers, customers and other interested parties for the purpose of recognizing their
<br /> participation, encouraging energy efficiency, demand management activities and any other
<br /> community promotion activities.
<br /> 3) The District has Participant's permission to photograph and/or record Participant's employees during
<br /> Participant's participation in the TOD Program,and to use their name and likeness in connection with
<br /> its promotion and administration of the TOD Program.
<br /> F. TERM,TERMINATION AND OTHER TERMS AND CONDITIONS
<br /> 1) This Agreement shall be in effect from March 2,2020 to December 31,2023 unless sooner
<br /> terminated by either party.
<br /> 2) Participant or the District may terminate this Agreement at any time upon written notice of
<br /> termination to the other party.
<br /> 3) The failure of either party to insist upon or enforce strict performance by the other arty of any
<br /> provision of this Agreement,or to exercise any right under this Agreement,shall not be construed
<br /> as a waiver or relinquishment to any extent of the first parry's right to assert or rely upon any such
<br /> Time of Day Pilot Customer Participant Agreement -- Execution Final_March 2,2020 3 of 7
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