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c. DISCLOSURES REQUIRED BY LAW
<br /> Nothing in this Agreement shall be construed to prohibit or limit any of the Parties to this Agreement
<br /> from disclosures required or requested under applicable law, regulations, rules or procedures of any
<br /> governmental authority including, without limitation, any regulatory agency or court of competent
<br /> jurisdiction. Each Party shall promptly notify the other Party upon receipt of a request for disclosure
<br /> of confidential information, so that such other Party may, at its own cost and expense, seek a
<br /> protective order or other appropriate remedy. Under no circumstances whatsoever will a Party other
<br /> than the Party which has designated the requested information as confidential have any obligation
<br /> whatsoever to initiate, defend against, or otherwise participate in or in connection with any inquiry,
<br /> investigation, action, claim, suit, arbitration, or proceeding relating to the release of any such
<br /> confidential information. Nothing herein shall be construed as prohibiting any Party from using
<br /> confidential information in connection with (i) any claim against the other Party to this Agreement in a
<br /> dispute arising under or related to this Agreement or (ii) any third party claims for which any Party is
<br /> seeking indemnification from the other Party to this Agreement. No Party to this Agreement shall
<br /> have any liability whatsoever to the other Party for the disclosure or copying of designated
<br /> confidential information where, in the opinion of legal counsel for the disclosing Party, the disclosing
<br /> Party is compelled to permit such disclosure or copying or else risk civil or criminal liability or penalty.
<br /> 11. END USER assumes the risk of any loss or damage that END USER may incur in connection with
<br /> participation in WEC. Energy savings and facility improvements are not guaranteed. In no event will
<br /> UTILITY, BPA, or their representatives be liable for more than the amount of any incentives based on the
<br /> energy saving calculations associated with this Agreement.
<br /> 12. UTILITY must give END USER all reimbursements received from BPA for the WEC Program as they
<br /> pertain to END USER. Funding levels and amounts are set according to BPA's Energy Efficiency
<br /> Implementation Manual and are described in attached and incorporated Table 1. UTILITY shall pay END
<br /> USER no later than thirty (30) days after receipt of funds from BPA. UTILITY is never obligated to pay
<br /> monies to END USER in an amount greater than the amount received from BPA, and END USER is not
<br /> obligated to return any money already received.
<br /> 13. NO WARRANTIES AND HOLD HARMLESS: END USER acknowledges that no warranties, implied or
<br /> expressed, are created under this Agreement; and, that END USER waives any claim, cause of action or
<br /> breach of warranty claim which may arise under this Agreement. The Parties stipulate this waiver is
<br /> made upon mutual assent, and is knowingly and intelligently made.
<br /> 14. INDEMNIFICATION AND HOLD HARMLESS
<br /> a. UTILITY'S INDEMNIFICATION OF END USER.
<br /> Except as otherwise provided in this Agreement, the UTILITY shall indemnify, defend and hold
<br /> harmless the END USER, its officers, officials, employees and agents, from and against all claims,
<br /> actions, suits, liability, loss, expenses, damages and judgments of any nature whatsoever, including
<br /> costs and reasonable attorneys' fees in defense thereof, for injury, sickness, liability or death to
<br /> persons or damage to property or business, caused by or arising out of negligent or intentional acts,
<br /> errors or omissions of the UTILITY, its officers, officials, employees and/or agents in the performance
<br /> of this Agreement; provided, that in the event of the concurrent negligence of the Parties, the
<br /> UTILITY's obligations hereunder shall apply only to the percentage of fault attributable to the
<br /> UTILITY, its officers, officials, employees and/or agents.
<br /> b. END USER'S INDEMNIFICATION OF UTILITY
<br /> 3*
<br /> Energy Smart
<br /> Industrial
<br /> BPA ENERGY EFFICIENCY
<br /> SEM Funding Agreement,7-29-2016 3
<br /> JRK 1.13.2017
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