|
5. Customer agrees to be diligent in following action plan recommendations provided by USTMAN and
<br /> in providing to USTMAN, on request, written reports of remedial actions taken either independently
<br /> of, or pursuant to, such action plan recommendations.
<br /> 6. Customer realizes that USTMAN must have accurate input data. Should USTMAN be prevented from
<br /> performance of its services hereunder by the Customer providing incorrect information, or by other
<br /> events beyond the reasonable control of USTMAN, USTMAN shall have no liability to Customer.
<br /> 7. Customer recognizes that the USTMAN SIR System relies on statistical analysis of input data
<br /> provided by Customer which may not be susceptible of conclusive analysis. Results may only
<br /> indicate possibilities or trends. USTMAN is not responsible or liable for analysis which, while
<br /> statistically accurate, does not identify leaks or other failures. In no event, whether as a result of
<br /> breach of contract,warranty,tort(including negligence and strict liability)or otherwise,shall USTMAN
<br /> be liable for any special, consequential, incidental or penal damages, including, but not limited to,
<br /> loss of profit or revenues, loss of use or cost of repair of USTs or any associated equipment, cost
<br /> of substitute or replacement services, cost of repair or damages caused by undetected leaks or
<br /> damages to the environment, down time costs or claims of Customer or anyone claiming through
<br /> Customer for any such damages; nor shall USTMAN's total liability to Customer for any and all loss
<br /> or damage arising out of or resulting from this agreement or from its performance or breach, or from
<br /> the services furnished hereunder, exceed the price of the service provided during one year's term
<br /> of this agreement with respect to a specific UST which gives rise to the claim. Any such liability shall
<br /> terminate upon the expiration of this agreement.
<br /> 8. If USTMAN furnishes Customer with action plan recommendations,advice or other assistance which
<br /> concerns any service supplied hereunder, the furnishing of such recommendations, advice or
<br /> assistance will not subject USTMAN to any liability, whether in contract, warranty, tort (including
<br /> negligence and strict liability) or otherwise.
<br /> 9. Customer shall hold harmless USTMAN from, and indemnify against, any and all actions, causes,
<br /> losses, penalties and fines related to or arising out of Customer's ownership, installation and
<br /> operation of its USTs except to the extent directly related to USTMAN's gross negligence or willful
<br /> misconduct. USTMAN DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
<br /> INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
<br /> FITNESS FOR A PARTICULAR USE.
<br /> 10. This contract shall be binding upon the parties and their respective successors and assigns. This
<br /> agreement may not be assigned by Customer without the written consent of USTMAN. Any transfer
<br /> of more than 50% of the equity interest of Customer during any 12 month period shall constitute an
<br /> assignment. USTMAN may assign all or part of its rights, obligations and duties herein to a third
<br /> party.
<br /> 11. All notices given hereunder shall be in writing and addressed to the parties at the mailing addresses
<br /> or fax numbers indicated above. Any party may give notice of change of address or fax number as
<br /> herein provided. Any written notice properly addressed to a party and mailed, first class postage
<br /> prepaid, certified or registered return receipt requested, shall be deemed given as of the date of
<br /> mailing.
<br /> 12. This agreement shall be interpreted in accordance with the laws of the State of Colorado. In the
<br /> event USTMAN and Customer have a dispute under this Agreement,they agree to attempt to resolve
<br /> the dispute in good faith through negotiation, mediation, or similar alternative dispute resolution
<br /> techniques. If such good faith attempt to resolve the dispute is unsuccessful, the dispute shall be
<br /> submitted to arbitration rules of the American Arbitration Association. The decision of the arbitrators
<br /> shall be final and binding upon the parties hereto,and the judgement thereon may be entered in any
<br /> court having jurisdiction.
<br /> 13. In the event either party commences a legal proceeding, including arbitration, to enforce any of the
<br /> provisions set forth in this agreement, the unsuccessful party shall pay the prevailing party's
<br /> reasonable attorneys' fees, costs and expenses relating to such action.
<br /> 14. Should any part of this agreement become or be held to be invalid, the remaining portions shall
<br /> remain in full force and effect.
<br /> 15. Any payments received more than 15 days after due date are subject to a late charge of 5%. Should
<br /> customer be more than 30 days late in paying fees, USTMAN may discontinue the monthly
<br /> monitoring service until the account is made current or may, at USTMAN's option, terminate the
<br /> agreement.
<br /> 16. This document represents the entire agreement of the parties with respect to the subject matter
<br /> hereof. Any modifications to this agreement must be in writing, signed by both parties and attached
<br /> hereto.
<br />
|