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<br />11. Access. Fluence may at any time, directly or indirectly, access and take possession of the Demonstration Equipment, and of any copy, reproduction,
<br />derivative work, improvement, or derivation thereof, and transport or return, or have transported or returned to Fluence or any third party designated by
<br />Fluence, and Cline hereby gives Fluence and/or a third party designated by Fluences the express right, to enter or access the Site and any other property of or
<br />under the direct or indirect control of Client or any of its affiliates at any time for the purpose of the foregoing. Any access or entry of the Site and such other
<br />property shall be deemed not to be trespass or any crime, tort, breach of contract or a duty, or otherwise give rise to any claim or liability by Fluence or such
<br />third party.
<br />12. Indemnity. Client shall indemnify, defend, and hold harmless Fluence and any of its affiliates, officers, directors, employees, agents, representatives, and
<br />contractors from and against all claims, allegations, actions, suits, and proceedings, and all liability, losses, damages, penalties, taxes, costs , and expenses
<br />(including without limitation, reasonable attorneys’ fees and legal costs), arising from or in connection with any use, utilization, operation, and possession of
<br />the Pilot Equipment, any Loss, and/or any violations of any applicable law, negligence, willful misconduct, an violation of any third party’s rights or property
<br />by Client or any of its employees, agents, or representatives. Fluence shall indemnify, defend, and hold harmless Client and its elected and appointed officials,
<br />officers, directors, employees, agents, and representatives from and against all claims, allegations, actions, suits, and proceedings, and all liability, losses,
<br />damages, penalties, taxes, costs , and expenses (including without limitation, reasonable attorneys’ fees and legal costs), arising from or in connection with
<br />any use as permitted under this contract in compliance with the operations and maintenance manual instructions as provided by Fluence for utilization,
<br />operation, and possession of the Pilot Equipment, any Loss, and/or any violations of any applicable law, negligence, willful misconduct, or any violation of any
<br />third party’s rights or property by Fluence or any of its employees, agents, or representatives.
<br />13. Warranties and Representations. Each Party represents and warrants that it has the authority to enter the Agreement, and the execution,
<br />delivery and performance of the Agreement by such Party has been duly and properly authorized by all necessary corporate actions, and the
<br />Agreement constitutes the valid and binding obligation of such Party. THE DEMONSTRATION EQUIPMENT IS LEASED, ANY FLUENCE
<br />PROPERTY IS MADE AVAILABLE, AND ALL SERVICES ARE PERFORMED AND PROVIDED “AS IS”. OTHER THAN THE FOREGOING IN THIS SECTION
<br />11, FLUENCE MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, AND STATUTORY,
<br />INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
<br />TITLE, OR WORKMANSHIP, REGARDING THE DEMONSTRATION EQUIPMENT AND ANY FLUENCE PROPERTY.
<br />14. Liability. IN NO EVENT SHALL FLUENCE BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR LIQUIDATED DAMAGES OF ANY
<br />KIND UNDER OR IN CONNECTION WITH THE AGREEMENT, THE DEMONSTRATION EQUIPMENT, ANY FLUENCE PROPERTY, OR ANY SERVICES. IF FLUENCE IS
<br />LIABLE FOR ANY DAMAGES UNDER THE AGREEMENT OR RELATED TO THE DEMONSTRATION EQUIPMENT, FLUENCE PROPERTY, OR SERVICES, FLUENCE’S
<br />TOTAL AND AGGREGATE LIABILITY SHALL BE, REGARDLESS OF THE CAUSE OF ACTIONS OR INCIDENTS OR LEGAL THEORIES, THE AGGREGATE AMONUTS OF
<br />THE DEMONSTRATION FEES RECEIVED BY FLUENCE UNDER THE AGREEMENT, PROVIDED THAT THIS EXCLUSION SHALL NOT APPLY TO FRAUD, NEGLIGENCE,
<br />WILFUL MISCONDUCT. For avoidance of doubt, the total aggregate liability specified in this Section 14 shall be in addition to any amounts recovered from
<br />insurance.
<br />15. Insurance. Both parties shall maintain insurance, and furnish proof of such insurance to Client prior to beginning work under this Agreement, in the following
<br />amounts: $1,000,000 of Commercial General Liability insurance, automobile insurance in the amount of $1,000,000, and workers compensation insurance in
<br />the amount of $1,000,000. Fluence shall include all subcontractors as insureds under its policies. Client, its officers, officials, and employees, are to be covered
<br />as additional insureds as respects: liability arising out of work or operations performed by or on behalf of Fluence under this Agreement.
<br />16. Miscellaneous. The Parties are, and will always represent themselves to be, independent contractors and not partners, joint ventures, co- owners, or other
<br />participants in a joint or common undertaking. The personnel of one Party is not, and shall not be deemed to be, personnel of the other Party, and no Party
<br />I liable for the personnel of the other party. Client may not transfer the Agreement or assign any right, or delegate any obligation, under the Agreement, and
<br />any such attempted transfer, assignment, or delegation shall be null and void. The Agreement shall be binding upon and inure to the benefit of the permitted
<br />successors and assigns of the Parties. The Agreement constitutes the entire understanding and agreement between the Parties related to the subject matter
<br />hereof, may not be changed or supplemented other than in written amendment that specifies the provisions of the Agreement that are changed or
<br />supplemented and is signed by each Party. No right of a Party is or shall be deemed waived or changed other than as expressly set forth in a written waiver
<br />signed by such Party. A failure of a Party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder. THE AGREEMENT,
<br />AND THE INTERPRETATION AND CONSTRUCTION OF THE AGREEMENT, AND THE VALIDITY, ENFORCEABILITY AND PERFORMANCE OF THE AGREEMENT, AND
<br />ANY DISPUTE UNDER THE AGREEMENT AND THE RESOLUTION OF ANY DISPUTE UNDER THE AGREEMENT, SHALL BE GOVERNED BY LAW OF THE STATE OF NEW
<br />YORK, UNITED STATES OF AMERICA, AND ANY APPLICABLE U.S. FEDERAL LAW, WITHOUT THE APPLICATION OF ANY CONFLICTS OF LAW PROVISIONS THAT
<br />WOULD RESULT IN THE APPLICATION OF THE LAW OF A DIFFERENT JURISDICTION. THE APPLICATION OF THE UNITED NATIONS CONVENTION ON
<br />THE INTERNATIONAL SALE OF GOODS IS HEREBY EXPRESSLY DISCLAIMED BY THE PARTIES. In the event of a dispute under the Agreement or on the
<br />enforcement of the Agreement, each Party consents and submits to the non-exclusive jurisdiction of competent New York state courts, and the U.S. District
<br />Court for the Southern District of New York, sitting in the Borough of Manhattan New York, New York, United States of America. If any provision of the
<br />Agreement is held to be invalid or unenforceable, it will be construed, to the extent feasible, so as to render the provision enforceable. If there is no such
<br />feasible construction, such provision will be severed from the remainder of the Agreement, which shall remain in full force and effect, and the Parties will use
<br />their best efforts to negotiate in good faith a substitute, valid, and enforceable provision most nearly effecting the Parties’ intent of such provision.
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