|
b. Permitted Disclosures. Notwithstanding Section 18(a):
<br />a Party may provide such Confidential Information to its affiliates and to its and its affiliates' respective officers,
<br />directors, members, managers, employees, agents, contractors, consultants and Financing Parties (collectively,
<br />"Representatives"), and potential direct or indirect assignees of this Agreement if such potential assignees are
<br />first bound by a written agreement or legal obligation restricting use and disclosure of Confidential Information.
<br />Each Party is liable for breaches of this provision by any person to whom that Party discloses Confidential
<br />Information.
<br />ii. Confidential Information does not include any information that (a) becomes publicly available other than through
<br />breach of this Agreement, (b) is required to be disclosed to a Governmental Authority under applicable law or
<br />pursuant to a validly issued subpoena, (c) is independently developed by the receiving Party, or (d) becomes
<br />available to the receiving Party without restriction from a third party under no obligation of confidentiality. If
<br />disclosure of information is required by a Governmental Authority, the disclosing Party shall, to the extent
<br />permitted by applicable law, notify the other Party of such required disclosure promptly upon becoming aware
<br />of such required disclosure and shall reasonably cooperate with the other Party's efforts to limit the disclosure
<br />to the extent permitted by applicable law.
<br />c. Miscellaneous. All Confidential Information remains the property of the disclosing Party and will be returned to the
<br />disclosing Party or destroyed (at the receiving Party's option) after the receiving Party's need for it has expired or
<br />upon the request of the disclosing Party. Each Party acknowledges that the disclosing Party would be irreparably
<br />injured by a breach of this Section 18 by the receiving Party or its Representatives or other person to whom the
<br />receiving Party discloses Confidential Information of the disclosing Party and that the disclosing Party may be entitled
<br />to equitable relief, including injunctive relief and specific performance, for breaches of this Section 18. To the fullest
<br />extent permitted by applicable law, such remedies shall not be deemed to be the exclusive remedies for a breach of
<br />this Section 18, but will be in addition to all other remedies available at law or in equity. The obligation of
<br />confidentiality will survive termination of this Agreement for a period of two (2) years.
<br />d. Goodwill and Publicity. Neither Party may (a) make any press release or public announcement of the specific terms
<br />of this Agreement or the use of solar or renewable energy involving this Agreement (except for filings or other
<br />statements or releases as may be required by applicable law), or (b) use any name, trade name, service mark or
<br />trademark of the other Party in any promotional or advertising material without the prior written consent of the other
<br />Party. The Parties shall coordinate and cooperate with each other when making public announcements regarding this
<br />Agreement, the System and its use, and each Party may promptly review, comment upon and approve any publicity
<br />materials, press releases or other public statements before they are made. Notwithstanding the above, Seller is entitled
<br />to place signage on the Premises reflecting its association with the System.
<br />19. General Provisions
<br />a. Definitions and Interpretation. Unless otherwise defined or required by the context in which any term appears: (i)
<br />the singular includes the plural and vice versa, (ii) the words "herein," "hereof' and "hereunder" refer to this
<br />Agreement as a whole and not to any particular section or subsection of this Agreement, (iii) references to any
<br />agreement, document or instrument mean such agreement, document or instrument as amended, restated, modified,
<br />supplemented or replaced from time to time, and (iv) the words "include," "includes" and "including" mean include,
<br />includes and including "without limitation." The captions or headings in this Agreement are strictly for convenience
<br />and will not be considered in interpreting this Agreement. As used in this Agreement, "dollar" and the "$" sign refer
<br />to United States dollars.
<br />b. Choice of Law; Dispute Resolution. The law of the state where the System is located governs all matters arising out
<br />of this Agreement without giving effect to conflict of laws principles. Any dispute arising from or relating to this
<br />Agreement shall be settled by arbitration in Cuyahoga County, Ohio. The arbitration shall be administered by the
<br />American Arbitration Association] in accordance with its AAA Commercial Rules, and judgment on any award
<br />rendered in such arbitration may be entered in any court of competent jurisdiction. If the Parties agree in writing, a
<br />mediator may be consulted prior to arbitration. The prevailing Party in any dispute arising out of this Agreement is
<br />entitled to reasonable attorneys' fees and costs.
<br />C. Notices. All notices under this Agreement shall be in writing and delivered by hand, electronic mail, overnight courier,
<br />or regular, certified, or registered mail, return receipt requested, and will be deemed received upon personal delivery,
<br />acknowledgment of receipt of electronic transmission, the promised delivery date after deposit with overnight courier,
<br />(7794548:) SEIA C&I PPA, version 2.0
<br />Exh. 3, p. 13
<br />
|